Principles of South African Prison Law and Proposals for their Implementation
ANGUS LLOYD HORNIGOLD
Submitted in fulfilment of the requirements for the degree of
Doctor Legum
In the
Faculty of Law
of the
NELSON MANDELA METROPOLITAN UNIVERSITY
November 2013
Promoter: Professor Deon Erasmus DECLARATION
I, ANGUS LLOYD HORNIGOLD do hereby declare that
PRINCIPLES OF SOUTH AFRICAN PRISON LAW AND PROPOSALS FOR THEIR IMPLEMENTATION is my own work and that it has not previously been submitted for assessment to another University or for another qualification.
Signed on this the 21st day of November 2013 at Port Elizabeth.
______ANGUS HORNIGOLD
ACKNOWLEDGEMENT
I wish to express my thanks and appreciation to the following:
• Wendy, Madison and Faith
• Professor Deon Erasmus, for his patience and guidance
Soli Deo Gloria!
TABLE OF ABBREVIATIONS
CAT Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
CDPC European Committee on Crime Problems
C-Max Super Maximum Security Correctional Facility
CPT Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
CSPB Correctional Supervision and Parole Board
CSPRB Correctional Supervision and Parole Review Board
DCS Department of Correctional Services
ECHR European Convention on Human Rights
EComHR European Commission of Human Rights
ECPT European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
ECtHR European Court of Human Rights
EPR European Prison Rules
ESMR European Standard Minimum Rules for the Treatment of Prisoners 1973
i HIV/AIDS Human Immunodeficiency Virus/Acquired Immuno Deficiency Syndrome ICCPR International Covenant on Civil and Political Rights
Inspecting Judge Acting Inspecting Judge of Prisons appointed in compliance with section 90 of the Correctional Services Act, Act 111 of 1998
Jali Commission Commission of Inquiry Into Alleged Incidents of Corruption, Maladministration, Violence or Intimidation Into The Department of Correctional Services Appointed By Order of The President Of The Republic of South Africa In Terms Of Proclamation No. 135 Of 2001, As Amended.
OPCAT Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
PLRA Prison Litigation Reform Act
UDHR Universal Declaration Of Human Rights
UNSMR Standard Minimum Rules for the Treatment of Prisoners
ii LIST OF TABLES AND DIAGRAMS
Table of Overcrowding in Natal Prisons in 1907 ...... 51 Basic premise of the deterrence theory ...... 287 Rational choice theory equation allowing for extra-legal costs ...... 297 Rational choice theory equation allowing for extra-legal costs and perceptions and discount rate ...... 297 Diagram demonstrating interrelationship of systemic problems ...... 327 Table of overcrowding in South African Prisons in 2009 ...... 348
iii LIST OF ANNEXURES
A Plata v. Schwarzenegger 603 F.3d 1088 (9th Cir. 2010). Order of court Docket no. 3:01-cv-01351-THE
iv TABLE OF CONTENTS
Page TABLE OF ABBREVIATIONS ...... i
LIST OF TABLE AND DIAGRAMS ...... iii
LIST OF ANNEXURES ...... iv
SUMMARY ...... xiii
CHAPTER 1: INTRODUCTION ...... 1 1. Introduction ...... 1 2. Reasons for selecting the topic ...... 3 3. Statement of the problem and importance of research ...... 3 4. Structure ...... 5 5. Methodology ...... 17 6. Explanation of terminology ...... 20
CHAPTER 2: HISTORY OF PRISONS ...... 21 1. Introduction ...... 21 2. Early history ...... 23 3. The English experience ...... 27 4. The American experience ...... 31 5. The Western European experience ...... 36 6. The development of the international prohibition against cruel, inhuman or degrading punishment or treatment ...... 40 7. The South African experience ...... 42 7.1 The prison in sub-Saharan Africa...... 42 7.2 Pre-colonial Eastern Cape ...... 44 7.3 Pre 1910 ...... 46 7.3.1 Cape ...... 46 7.3.2 Natal ...... 50 7.3.3 The Orange Free State ...... 52 7.3.4 Transvaal ...... 53 7.4 United South Africa ...... 54 7.4.1 Pre 1959 ...... 54 7.4.2 Post 1959 ...... 58 7.4.3 Post 1994 ...... 59 8. Conclusion ...... 60
v CHAPTER 3: INTERNATIONAL AND COMPARATIVE PRISON LAW ...... 64 1. Introduction ...... 65 2. International law ...... 66 2.1 Prisoners shall not be tortured nor shall they be punished or imprisoned in conditions that are cruel, inhuman or degrading ...... 68 2.1.1 International standards: cruel and inhuman, degrading punishment or treatment ...... 68 2.1.2 Imprisonment in conditions that respect human dignity ...... 71 2.1.2.1 Accommodation ...... 71 2.1.2.2 Clothing and bedding ...... 72 2.1.2.3 Exercise and recreation ...... 73 2.1.2.4 Food ...... 73 2.1.2.5 Health care ...... 73 2.1.2.6 Access to legal advice ...... 75 2.1.2.7 Religion and belief ...... 75 2.1.2.8 Contact with community and access to prisons ...... 75 2.1.2.9 Work ...... 76 2.2 All prisoners shall be detained in a safe environment in which good order prevails ...... 77 2.2.1 Duty of care ...... 77 2.2.2 Discipline ...... 77 2.2.3 Searches ...... 79 2.2.4 Categorisation ...... 80 2.2.5 Use of force ...... 81 2.2.6 Instruments of restraint ...... 83 2.3 The prohibition on torture or cruel, inhuman or degrading treatment or punishment is an absolute prohibition to which the insufficient material resources of the state are not relevant ...... 83 2.4 The rights of prisoners apply to all prisoners ...... 84 2.5 Primacy of the prisoner’s rights ...... 84 2.6 Life in prison shall resemble the positive aspects of life in the community 87 2.7 Imprisonment shall be designed to rehabilitate and socially re-integrate prisoners ...... 87 2.8 Prison staff shall be recruited and trained to properly discharge their duty to care for prisoners and act with integrity ...... 89 2.9 Imprisonment is a punishment in and of itself and therefore conditions of imprisonment shall not aggravate the suffering inherent in imprisonment 90 2.10 Restrictions placed on prisoners shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed ...... 91 2.11 A prisoner retains all those rights which have not been taken away by law and which are not necessarily inconsistent with the circumstances in which he has been placed ...... 92 2.12 Prisoners’ avenues of protection, redress and remedies ...... 93 2.12.1 Prisons shall be as open and transparent as possible ...... 93 2.12.2 Complaints and requests ...... 93
vi 2.12.3 Inspectorate ...... 93 2.12.4 Right of recourse to court ...... 94 3. Comparative law ...... 94 3.1 Limitation of rights ...... 98 3.2 Prohibition on cruel, inhuman or degrading treatment or punishment ...... 101 3.2.1 Duty of care ...... 103 3.2.1.1 Brutality by fellow prisoners ...... 103 3.2.1.2 Assault by staff...... 112 3.2.1.3 Failure to train staff ...... 114 3.2.2 Conditions of detention ...... 116 3.2.2.1 Overcrowding ...... 116 3.2.2.2 Failure to provide rehabilitative programmes ...... 127 3.2.2.3 Cell conditions...... 129 3.2.2.4 Contact with the community and access to prisons ...... 138 3.3 Health and mental health ...... 141 3.3.1 General ...... 141 3.3.2 Forced medication and forced feeding ...... 144 3.4 Good order ...... 145 3.4.1 Searches ...... 145 3.4.1.1 General ...... 145 3.4.1.2 Cross gender searches ...... 146 3.4.1.3 Strip searches and invasive searches ...... 146 3.4.2 Disciplinary process ...... 148 3.4.2.1 Hearings and due process ...... 148 3.4.2.2 Solitary confinement ...... 151 3.5 Defence of insufficient resources ...... 152 3.6 Remedies ...... 153 3.6.1 Access to court ...... 153 3.6.2 Legal remedies ...... 153 4. Conclusion ...... 155
CHAPTER 4: THE SOUTH AFRICAN COMMON LAW OF PRISONER RIGHTS 156 1. Introduction ...... 156 2. Torture or treatment or punishment in a cruel, inhuman or degrading manner ...... 158 3. All prisoners shall be detained in a safe environment in which good order prevails ...... 163 3.1 Duty of care generally ...... 163 3.2 Duty to provide a safe environment ...... 166 3.3 Duty to provide adequate health care ...... 170 4. Residuum principle ...... 177 5. Prison staff ...... 178 6. Insufficient material resources of the state ...... 180
vii 7. The principle of legality ...... 189 8. Ubuntu ...... 190 9. The right to lawful, reasonable and procedurally fair administrative action 192 9.1 The “hands off” approach to the administration of prisons ...... 195 9.2 Audi alteram partem rule ...... 204 9.3 The administrative official must apply his mind ...... 206 9.4 Administrative failures and damages ...... 207 9.5 Legitimate expectations ...... 207 10. Rehabilitation and re-integration ...... 208 11. Imprisonment is a punishment in and of itself ...... 209 12. Restrictions shall be the minimum necessary ...... 211 13. Proportionality ...... 212 14. Arbitrariness ...... 213 15. The beneficent state principle ...... 215 16. Prisoners’ avenues of protection, redress and remedies ...... 216 16.1 Damages ...... 216 16.2 Interdicts ...... 221 16.3 Declarations of invalidity ...... 226 16.4 The right to legal assistance ...... 227 17. The right to parole ...... 229 17.1 Non-medical parole ...... 229 17.2 Medical parole...... 236 18. Limitation of rights ...... 238 18.1 Limitations that contravene the prohibition on torture or cruel, inhuman or degrading treatment or punishment ...... 240 18.2 Limitations that do not contravene the prohibition on torture or cruel, inhuman or degrading treatment or punishment nor frustrate the Purposes of punishment ...... 243 18.3 Type of punishment cases ...... 247 18.4 Limitation of rights when the limitation frustrates the purpose of punishment ...... 253 19. Conclusion ...... 254
CHAPTER 5: THEORIES OF PUNISHMENT ...... 260 1. Introduction ...... 260 2. Terminology ...... 261 2.1 Rehabilitation ...... 262 2.2 Deterrence ...... 264 2.3 Prevention ...... 266 2.4 Retribution ...... 267 3. The theories ...... 268 3.1 Prevention ...... 268 3.1.1 Jurists ...... 268
viii 3.1.2 Common law ...... 269 3.1.3 Assessment of the theory ...... 272 3.2 Retribution ...... 273 3.2.1 Jurists ...... 273 3.2.2 The common law ...... 277 3.2.3 The Correctional Services Act ...... 279 3.3 General deterrence ...... 281 3.3.1 Jurists ...... 281 3.3.2 The common law ...... 283 3.3.3 The economic theorist approach ...... 286 3.3.3.1 Background ...... 286 3.3.3.2 Theoretical construction ...... 287 3.3.3.3 Empirical testing of the model ...... 290 3.3.3.3.1 Empirical testing of hypothesis one: an inverse relationship between the objective properties of punishment and the crime rate ...... 290 3.3.3.3.2 Empirical testing of hypothesis two: a positive relationship between the objective properties of punishment and the perceptual properties of punishment ...... 295 3.3.3.3.3 Empirical testing of hypothesis three: an inverse relationship between the perceptual properties of punishment and measures of criminal offending must be demonstrated ...... 297 3.3.4 The Correctional Services Act ...... 299 3.4 Rehabilitation ...... 299 3.4.1 Jurists ...... 299 3.4.2 The common law ...... 302 3.4.3 The medical model and the assessment thereof ...... 306 3.4.3.1 Brief history of the medical model ...... 307 3.4.3.2 Current theoretical model and empirical evaluation thereof ...... 309 3.4.3.3 Specific deterrence, rehabilitation and recidivism ...... 316 3.4.4 Correctional Services Act ...... 321 4. Conclusion ...... 322
CHAPTER 6: SYSTEMIC PROBLEMS AND THEIR IMPLICATIONS ...... 325 1. Introduction ...... 325 2. Lack of medical staff and facilities ...... 328 2.1 Jali report ...... 329 2.2 Prison and health care in High Court cases ...... 333 2.3 Annual reports of the inspecting judge ...... 334 3. Prison overcrowding ...... 338 3.1 Jali report ...... 339 3.2 High Court cases ...... 342 3.3 Annual reports of the inspecting judge ...... 345 4. Prison gangs ...... 353
ix 4.1 Origins ...... 354 4.2 Etiology ...... 356 4.3 Sexuality in prison and the gang system ...... 358 5. Prison staff ...... 371 5.1 Staff violence ...... 373 5.1.1 Staff on staff violence ...... 373 5.1.2 Staff on prisoner violence ...... 374 5.2 Staff corruption ...... 379 6. Rehabilitation programmes ...... 385 7. Conclusion ...... 391
CHAPTER 7: RESTORATIVE JUSTICE...... 395 1. Introduction ...... 395 2. The details of the New Zealand and juvenile justice system ...... 396 3. The traditional Xhosa model ...... 400 4. The South African Child Justice Act ...... 401 5. Restorative justice, the Xhosa model and reductionism ...... 403 6. Conclusion ...... 409
CHAPTER 8: CONCLUSION ...... 410 1. Introduction ...... 411 2. The reductionist and abolitionist arguments...... 413 2.1 Abolitionist argument ...... 413 2.1.1 Limitation of rights ...... 413 2.1.2 Cruel, inhuman or degrading treatment or punishment per se ...... 414 2.1.3 Imprisonment is not a cruel, inhuman or degrading punishment or treatment per se ...... 417 2.2 The justification determination ...... 417 2.3 The onus ...... 419 2.4 The determination ...... 419 2.4.1 Legitimacy ...... 420 2.4.1.1 Retribution ...... 420 2.4.1.2 Rehabilitation ...... 421 2.4.1.3 Deterrence ...... 424 2.4.1.4 Prevention ...... 426 2.4.2 Proportionality ...... 426 2.4.3 Other considerations ...... 429 2.5 Reductionist argument ...... 430 3. Proposed remedies ...... 439 3.1 Introduction ...... 439 3.2 Restorative justice ...... 440 3.3 Special masters ...... 441
x 3.4 Proposed model for legislative amendments ...... 448 3.4.1 Arbitrariness ...... 448 3.4.2 Current mechanisms for enforcement of prisoner rights ...... 450 3.4.2.1 The complaint system ...... 450 3.4.2.2 Prisoners and the court system ...... 453 3.4.3 Specialised courts ...... 455 3.4.4 Right to legal redress ...... 458 3.4.5 Beneficent state principle ...... 459 3.4.6 Proposed expansion of powers of the existing protection ...... 460 3.4.6.1 Proposed solution procedure ...... 460 3.4.6.2 Limitations that do not violate the prohibition on torture or cruel, inhuman or degrading treatment or punishment nor do they frustrate the purposes of punishment ...... 461 3.4.6.3 Limitations that do not violate the prohibition on torture or cruel, inhuman or degrading treatment or punishment but do frustrate the purposes of punishment...... 463 3.4.6.4 Limitations that violate the prohibition on torture or cruel, inhuman or degrading treatment or punishment ...... 465 3.4.6.5 Prisoner protector ...... 465 3.4.6.6 Powers of the various bodies ...... 468 3.4.6.6.1 Independent prisoner visitor ...... 468 3.4.6.6.2 The visitor’s committee ...... 469 3.4.6.6.3 Office of the prisoner protector ...... 470 3.4.6.6.4 The office of the inspecting judge ...... 471 4. Conclusion ...... 472
BIBLIOGRAPHY ...... 474 1. Books ...... 474 2. Journals and Articles ...... 477
CASE REGISTER ...... 489 1. Africa ...... 489 1.1 South Africa ...... 489 1.2 Botswana ...... 495 1.3 Cameroon ...... 495 1.4 Malawi...... 495 1.5 Mauritania ...... 495 1.6 Namibia...... 495 1.7 Nigeria ...... 496 1.8 Rwanda...... 496 1.9 Zimbabwe ...... 496 2. Europe ...... 497 2.1 United Kingdom ...... 497
xi 2.2 European Court of Human Rights ...... 497 3. United States of America ...... 499 3.1 Inter-American Court of Human Rights ...... 501
TABLE OF STATUTES ...... 502 1. Africa ...... 502 1.1 Malawi...... 502 1.2 Nigeria ...... 502 1.3 South Africa ...... 502 2. America...... 503 2.1 Canada ...... 503 2.2 Colombia ...... 503 2.3 Peru ...... 503 2.4 United States of America ...... 503 3. Europe ...... 504 3.1 Germany ...... 504 3.2 Netherlands ...... 504 3.3 Rome ...... 504 3.4 United Kingdom ...... 504 4. New Zealand ...... 504
TABLE OF INTERNATIONAL CONVENTION TREATIES, INSTRUMENTS AND STANDARD ...... 505 1. Regional...... 505 1.1 Africa ...... 505 1.2 America...... 505 1.3 Europe ...... 506 2. International ...... 506 2.1 United Nations ...... 506
DISSERTATIONS ...... 509
TABLE OF OFFICIAL SOURCES ...... 510 1. Regional...... 510 1.1 Africa ...... 510 1.1.1 South Africa ...... 510 1.2 America...... 512 1.2.1 Canada ...... 512 1.2.2 United States of America ...... 513 1.3 Europe ...... 516 1.3.1 United Kingdom ...... 516 1.4 Australia ...... 516
xii 1.5 New Zealand ...... 517 2. International ...... 517 2.1 United Nations ...... 517
TABLE OF OTHER SOURCES ...... 518
xiii SUMMARY
There are two broad areas of prisoner rights law that require development. The first area is that of the development of a common law framework with which to analyse disputes regarding the rights of prisoners. The second relates to the significant tension that exists between the conditions of detention that the Correctional Services Act envisages and the actual conditions of detention in South Africa prisons. This second aspect requires that a mechanism be created for the meaningful exercise of rights by prisoners.
As a precursor to both of the above discussions it is necessary to understand the history of prisons and the intentions of those who designed this form of punishment. As will be illustrated there tends to be to-and-fro shift in intention on the part of the authorities between those who intend imprisonment as a humane form of punishment which seeks to reform the offender and the subsequent despair of that project of reformation with a resultant focus on security and mere detention of the offender. It is also a history of conditions of detention that are generally inhumane. These poor conditions are sometimes caused by neglect on the part of the authorities but oft- times caused by the belief that harsh conditions of detention are a deterrent to would- be offenders.
The advent of human rights law has placed an increasingly more onerous responsibility on the state to care for the well-being of prisoners whilst in custody. This duty includes, but is not limited to, the duty to care for the prisoner’s mental and physical health, ensure that they are safe from physical violence both from fellow prisoners and staff as well as a duty to ensure that they receive the necessities of life. Various failures by the state have led to increased litigation against the state. This will continue to create an ever increasing burden on the state as the number of long term prisoners increase and damages awards are made by the courts, in favour of prisoners, against the state for various reasons. These reasons include diseases contracted by prisoners whilst in custody and constitutional damages following death in custody.
xiv It is therefore necessary to develop a clear framework with which to analyse such disputes so that decisions are made which are consistent with the principles of South African law. It is this framework which this study seeks to develop. In order to do this the relevant principles of both international prison law as well as South African law will be drawn upon. In this regard the importance of the purposes of punishment will be emphasized when engaging upon an analysis of the limitations of the rights of a person in the context of prison law.
Secondly, even though a sound framework may be developed with which to analyse prisoner rights there is still the difficulty of putting a system into operation which provides a mechanism through which prisoners can exercise those rights in a meaningful way. In order to create such a system there must be recognition of the impact of criminogenic conditions of imprisonment, the purposes of punishment and the values of the South African constitution. In this regard the principles of reductionism and restorative justice are considered. Furthermore, the role of special masters will be debated and amendments to the existing legislation will be proposed.
Keywords:
Prisons, prisoner rights, criminogenesis, punishment, conditions of detention
xv CHAPTER 1 INTRODUCTION
1. Introduction ...... 1 2. Reasons for selecting the topic ...... 3 3. Statement of the problem and importance of research ...... 3 4. Structure ...... 5 5. Methodology ...... 17 6. Explanation of terminology ...... 20
1. INTRODUCTION
The prison is a unique environment. Unlike the rest of society, in prison, the state forcibly detains the individual and removes his ability to care for himself. This situation carries with it a substantial responsibility for the state, namely to care for the prisoner.1
According to section 35(2)(e) of the Constitution2 conditions of detention must be consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment. This fundamental right is manifested in the Correctional Services Act3 which provides that one of the purposes of the correctional system in South Africa is to detain all inmates in safe custody, whilst ensuring their human dignity.4 The Correctional Services Act and its attendant Regulations5 set out in some considerable detail the required conditions of detention.6
The reality of these conditions of detention are far removed from the Constitutional and legislative model. South African Courts have pointed out that a prisoner sentenced to a long term of imprisonment is very likely to acquire a life threatening transmissible disease. Furthermore, conditions in South African prisons are currently
1 B and Others v Minister of Correctional Services and Others 1997 (6) BCLR 789 (C). 2 108 of 1996. 3 111 of 1998. 4 S 2. 5 GN R 323 in GG 35277 of 25-04- 2012. 6 See Ch 3 Pt A of the Correctional Services Act 111 of 1998 and Ch 2 of the Correctional Services Regulations GN R 323 in GG 35277 of 25-04- 2012.
1 characterised by overcrowding, gang activity and corruption.7 The following two examples of comments in recent judgments reveal the nature of conditions in South African prisons:
“(a) One Gideon Morris, a director in the Judicial Inspectorate of Prisons, deposed to an affidavit confirming the contents of the annual report of the Judicial Inspectorate and pointing out that, as a result of overcrowded prisons, the mortality rate amongst prisoners had increased by over 600% over the past seven years. He expressed surprise at the claim that the Drakenstein Prison could provide an uncrowded environment free of infection as well as twenty-four hour medical surveillance to a person suffering from lung cancer. In most cases the prison hospital was a large communal cell with no specialist facilities and housing persons suffering from various diseases such as tuberculosis, HIV/AIDS or pneumonia. In his experience medical personnel were not physically present after hours and the prisoners themselves sounded an alarm and summoned medical personnel should a fellow prisoner fall ill.....she rarely saw a doctor on the premises and patients who became ill overnight would invariably have to wait till the next morning for day-duty nursing staff to make the necessary arrangements for them to see a doctor or to visit an outside hospital.”8
“(b) I am acutely conscious, speaking from my own experience, that when sentencing a prisoner to a long term of imprisonment, that his or her prospect of emerging from prison alive is seriously compromised because of the HIV/AIDS pandemic. I believe that that thought would also engage most of my colleagues in this division. Much has been said and continues to be said about severe overcrowding from official sources. This is something about which I believe I can take official notice of.”9
Research indicates that approximately 41% of prisoners in South Africa's prison system are HIV-positive. Since 1995, reported cases of HIV/AIDS in South African prisons have risen by 750%, and the number of natural deaths in prison has risen by about 600% over the same period.10 Other problems also include massive overcrowding, poor state of repair of the buildings and poor sanitation, high staff turnover of prison guards, failure to allow for exercise because of a resultant lack of staff, and many others.11
7 See Ch 6 below. 8 Stanfield v Minister of Correctional Services and Others 2003 12 BCLR 1384 (C) 1401C-H. 9 EN and Others v Government of RSA and Others 2007 1 BCLR 84 (D). 10 “Draft Discussion Paper: HIV/AIDS, Human Rights and Access to Justice” Department of Justice & Constitutional Development (2009). 11 Oppler “Assessing the State of South African Prisons” (1998) Vol 7 No 4 African Security Review.
2 2. REASONS FOR SELECTING THE TOPIC
In Europe12 and in the United States of America13 prisoner litigation following poor conditions of detention has become a significant source of litigation. It is predicted that South African prisoners will soon follow suit since there have been significant developments in this area of the law, including the right to claim for damages suffered by virtue of contracting a communicable disease in prison,14 as well as the awarding of constitutional damages in cases of death in custody.15
The courts have thus far adopted an ad hoc approach to prisoner litigation16 and it is submitted that it is desirable that a framework be created for the making of decisions regarding disputes about conditions of detention.17
Furthermore, there is a clear legislative intent to create humane conditions of detention18 which does not appear to be materializing.19 Consequently more innovative judicial responses are required.20
These issues are of interest to the researcher who has previously conducted research into human rights law for his Masters degree studies. This research is intended to contribute to the development of this area of the law which, it is submitted, will undergo significant development.
3. STATEMENT OF THE PROBLEM AND IMPORTANCE OF RESEARCH
The central problem to be investigated in this research is the substantial gap
12 Van Zyl Smit and Snacken “Principles of European Prison Law and Policy Penology and Human Rights” (2009) table of cases. 13 Palmer Constitutional Rights of Prisoners 8th ed (2006) 939. 14 Lee v Minister of Correctional Services 2013 (2) SA 144 (CC). 15 M and Another v Minister of Police of the Government of the Republic of South Africa 2013 (5) SA 622. 16 B and Others v Minister of Correctional Services and Others supra. 17 See Ch 4 and Ch 7 below. 18 See Ch 3 Pt A of the Correctional Services Act 111 of 1998 and Ch 2 of the Correctional Services Regulations GN R 323 in GG 35277 of 25-04- 2012. 19 See Ch 6 below. 20 See Ch 7 below.
3 between the constitutional framework catering for the detention of prisoners in safe custody whilst ensuring their human dignity and the reality of conditions in South African prisons.
This research approaches this central problem by means of researching four sub- problems. Firstly, there are currently no studies in South Africa which have conducted a comprehensive study of the common law principles of prisoner rights.
Secondly, there is currently no general theoretical framework for assessing the enforceability of prisoner rights where those rights conflict, either with each other, or with institutional constraints.
Thirdly, punishment, as a social tool has, as one of its four purposes, the rehabilitation and social re-integration of the offender.21 This aspect is central to the Correctional Services Act.22
This position has also become apparent in South African common Law. In S v Makwanyane23 the court held that ubuntu is a fundamental value underlying our constitutional democracy and that in the context of punishment, this incorporates rehabilitation as a fundamental constitutional value against which punishment must be judged.24
Further examples of this centrality can be found in policy documents such as the 2005 Draft White Paper on Corrections in South Africa. In terms of this White Paper the Department of Correctional Services (DCS) adopts the view that the offender is capable of change from “criminal” to “law abiding citizen” and that the Department, through the medium of its staff, is the agent of that change.25
The primacy of this requirement must therefore be properly integrated into the
21 Correctional Services Act s 2(c). 22 Correctional Services Act s 37(2). 23 1995 (6) BCLR 665 (CC). 24 S v Makwanyane 1995 (6) BCLR 665 (CC) paras 241 and 260. 25 White Paper on the Policy of the Department of Correctional Services in the New South Africa (1994).
4 general framework mentioned above.
Finally, this significant divergence between the rights that our law bestows upon prisoners and the reality of prison life requires the development of solutions to remedy the situation.
Some of the solutions that have been proposed in this research have implications beyond the ambit of prison law. For example, the discussion on restorative justice has potential implications for the wider criminal justice system. Moreover the proposals for the appointment of special masters and the exploration of public law litigation has wide ramifications for judicial solutions to the administration, by the courts, of other public institutions, not only prisons. In the United States of America, this technique is employed by the courts to administer state hospitals, mental institutions and prisons.
4. STRUCTURE
Chapter 2 contains a study of the history of prisons in England, America, South Africa and Europe. These were chosen firstly because they are well documented. Secondly, the English model was imposed on South Africa following colonization of South Africa by the Europeans and the English.26 The American model is of importance because it represents the country with the greatest prison population in the world and it has been extensively studied.27 Thirdly, the European experience will be studied because the English and the European practices influenced each other: moreover prison as a dominant form of punishment originated in England and Europe.28
The history of prisons will be traced from their early manifestations until the 18th century. The latter period is the one in which imprisonment emerged as the dominant form of punishment in England and in Europe. The manner in which imprisonment
26 Van Zyl Smit South African Prison Law and Practice (1992) 7. 27 International Centre for Prison Studies “Entire world - Prison Population” (2013) Totals
5 displaced the violent punishments that had preceded it will also be discussed.29
In order to more fully understand the impact of human rights law on prisons the history of the prohibition on cruel and unusual punishments will be considered, including the eventual emergence of the prohibition on cruel, inhuman or degrading treatment or punishment.
The pre-colonial position regarding punishment in South Africa will also be considered since imprisonment was a form of punishment introduced during the process of colonization.
Finally, the history of punishment and imprisonment in South Africa will be considered. In this section the pre-colonial Xhosa model of social reconciliation will also be considered.
This section will attempt to locate the prison in South Africa both historically and internationally. Firstly, it is important to trace the origin of the modern prison in order to demonstrate that imprisonment as the usual form of punishment for crime is a relatively modern part of human culture. Furthermore, it will be seen that it has its origins in the concept of a humane form of punishment that developed in response to the so called “blood sanctions” of Europe. In addition, the underlying philosophy has normally been, from its inception, to seek to reform the offender, from criminal to law- abiding citizen. However, despite the humanitarian impulse that supported the creation of prisons, prisons have generally failed to realize these goals.
Prisons have usually suffered from a host of problems, including the following: a want of food, air, space, bedding, classification and moral discipline; the presence of corrupt guards, overcrowding and disease as well as failure to reform the prisoner. These in turn have often resulted in commissions of enquiry which attempted to resolve these problems. The role of an inspecting judge as a means to police prison guards will also be briefly discussed.
29 Van Zyl Smit South African Prison Law and Practice 3.
6 Certainly a number of researchers have branded prisons as failed institutions while others argue that the very nature of prisons is such that they cannot be reformed.
Furthermore, the development of the concept of prohibition on cruel, inhuman or degrading treatment or punishment will be explored. This standard, along with the development of human rights law, has developed a significant tension between human rights standards on the one hand and conditions of imprisonment on the other. This tension then gave rise to the formulation of certain guidelines regarding the proper treatment of prisoners.
One of the consequences of the conflict between the nature of the treatment of imprisoned offenders and human rights law is an effort to find alternatives to imprisonment. One alternative is the European response of reductionism. No specifically African responses have yet been formulated. The Xhosa model referred to above will be mooted later in this research as one basis for an alternative response to the failures of imprisonment.
Chapter 3 focuses on international and comparative prison law. The South African Constitution provides that when a court is interpreting the Bill of Rights it must promote the values that underlie an open and democratic society based on human dignity, equality and freedom: it must also consider international law and may consider foreign law.30
As discussed in the history section,31 efforts to create a new world order following World War II led to the formulation of the Universal Declaration of Human Rights by the United Nations. This instrument incorporated the values of human dignity and the prohibition on cruel, inhuman or degrading punishment or treatment or torture. Those values were then employed in various other legal instruments including bills of rights, and also domestic, regional and international legal instruments. One of the international instruments which reflected those values was the United Nations Standard Minimum Rules for the Treatment of Prisoners (UNSMR). UNSMR was drafted in 1955 by the United Nations Congress on Prevention of Crime and was an
30 S 39. 31 See s 5 of the History of Prisons section entitled No Cruel or Unusual Punishments.
7 effort to reconcile the demands of prisons, on the one hand, with the demands of human rights values, on the other. Certain of these principles were then adopted into various regional instruments, as well as national legislation.
The research will be divided into two broad categories, namely international law and comparative law.
In the section discussing international prison law, twelve broad and important principles will be discussed.
The first of these is that prisoners shall not be tortured, nor shall they be punished in a manner that is cruel, inhuman or degrading, nor shall they be imprisoned in conditions that are cruel, inhuman or degrading. The implication of this principle in the context of conditions of imprisonment will be discussed.
The second guiding principle is that all prisoners shall be detained in a safe environment in which good order prevails. The discussion of this duty includes a discussion of the general duty of care, discipline, proper categorization, appropriate use of force and appropriate use of instruments of restraint.
The third principle is that the prohibition on torture and cruel, inhuman or degrading treatment or punishment is an absolute prohibition: any exceptions based insufficient material resources of the state are not relevant.
The fourth principle states that all persons are equal before the law and have the right to equal protection and benefit of the law: principles protecting prisoners under international prison law are thus to be applied to all prisoners impartially.
The fifth principle requires that once the prisoner is securely incarcerated his or her rights , including the balancing of the competing rights of other prisoners in order to maximize the exercise of their rights, is to be the prime consideration of the prison authorities.
8 The sixth principle embodies the concept that life in the prison shall resemble the positive aspects of life in the community.
The seventh principle requires that imprisonment shall be designed to rehabilitate and socially re-integrate prisoners.
The eighth principle is that prison staff shall be recruited and trained to properly discharge their duty to care for prisoners and to act with integrity
The ninth principle requires that the conditions of imprisonment shall not aggravate the suffering inherent in imprisonment because the deprivation of liberty is a punishment in and of itself.
The restrictions placed on prisoners shall be limited to the minimum necessary and be proportionate to the legitimate objectives for which they are imposed. This is the tenth principle.
A prisoner retains all those rights which have not been taken away by law and which are not necessarily inconsistent with the circumstances in which he has been placed. This is the eleventh principle.
The final principle that will be discussed concerns the avenues of protection and the remedies available to prisoners. Prisons shall be as open and transparent as possible. This principle facilitates external monitoring of prison conditions. There should also be systems for the processing of prisoner complaints and requests, the existence of an independent judicial inspectorate and finally a right of recourse to a court that can adjudicate upon a dispute concerning prisoner rights.
In the section on comparative law two jurisdictions will be discussed. The first jurisdiction is that of the United States of America and the second that of Europe. The reasons for their selection are firstly because the law in these jurisdictions is often based upon fundamental rights’ principles which are similar to those contained in the South African Constitution. Secondly, the law in these jurisdictions is relatively well developed. Where possible, African punitive practices will be considered since
9 South Africa seeks to integrate African values into its traditionally euro-centric legal system.32
The general position in the United States of America is governed by the Constitution as the supreme law of the country, as interpreted by the courts: this protects individuals from federal action. The first important provision is the First Amendment which relates to the free exercise of religion and freedom of speech. The second is the Fourth Amendment which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. The third provision - which is of importance to convicted prisoners - is the Eighth Amendment which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments, including torture. This provision is important in the context of excessive use of force, failure to provide medical care and in conditions of imprisonment. The final important provision is the Fourteenth Amendment which provides that no state shall deprive any person of life, liberty, or property, without due process of law.33
The European position is based on the Treaty of London which created the Council of Europe. This Council focuses on the rights and freedoms of the member states through a Consultative or Parliamentary Assembly and a Committee of Ministers. This latter organization adopted the European Convention on Human Rights (ECHR) in 1953. This was policed by the European Commission of Human Rights (EComHR) and the European Court of Human Rights (ECtHR).34
The Committee of Ministers of the Council of Europe established the European Committee on Crime Problems (CDPC) as a specialist organ with a focus on penological matters. This latter specialist body puts forward resolutions to be adopted by the Committee of Ministers. The first resolution that was adopted related to the electoral rights of prisoners. The Committee of Ministers adopted the
32 Vida infra the discussion on Ubuntu in s 5 in the South African Common Law of Prisoner Rights. 33 Palmer Constitutional Rights of Prisoners 5, 6, 7. 34 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 10.
10 European Standard Minimum Rules for the Treatment of Prisoners (ESMR) in 1973. These were substantially similar to the rules contained in the UNSMR.35
The most important recent development is the Recommendation of the Committee of Ministers of the Council of Europe that was the adopted in 2006 and comprises the new European Prison Rules.36
In the African context The African Charter on Human and Peoples’ Rights (also known as the Banjul Charter)37 was created under the auspices of the Organisation of African Unity, later known as the African Union. This charter established the African Commission on Human and Peoples’ Rights. The Commission’s Secretariat is located in Banjul, The Gambia. The Commission is officially charged with three major functions, namely, the protection and promotion of human and peoples’ rights and the interpretation of the African Charter on Human and Peoples’ Rights.
Article 45(2) provides that the Commission shall take steps to ensure the protection of human and peoples’ rights under conditions laid down in the Charter. To give effect to this mandate the Charter provides for a communication procedure. This is a complaint system through which an individual or group of individuals may complain about violations of fundamental rights which are protected in terms of the Charter. After the complaining party and the State have submitted their versions of the events and argument to the Commission it will decide whether there has been any violation. The Commission may then make recommendations to the offending state and to the AU Assembly on what remedial steps the state should take. It is to certain of these recommendations concerning prisoners that reference will also be made below.38
The next section to be considered is South African prison law. The South African Correctional Services Act has the object of changing the law governing the
35 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 20. 36 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 35. 37 African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982). 38 Chs II and III.
11 correctional system and giving effect to the Bill of Rights in the Constitution, 1996. It also recognizes international principles on correctional matters.39
In this chapter the legal position regarding cruel, inhuman or degrading treatment or punishment in South Africa will be discussed since this forms an important standard in assessing the treatment and conditions in which prisoners are kept.
A number of important principles exist in the context of prisoner rights and these will be researched. These principles include the following: the right of all prisoners to be detained in a safe environment in which good order prevails; the principle of legality; ubuntu; the right to lawful, reasonable and procedurally fair administrative action; the right to be treated in a manner that facilitates prisoner rehabilitation and re- integration; the right not to be subjected to additional punishment or maltreatment; the right to the minimum necessary restrictions; the Goldberg or residuum principle and the beneficent state principle.
The various principles of prison law both overlap and interact with each other but the courts have consistently dealt with them separately as they highlight the different aspects of prisoner rights.
When researching the right of all prisoners to be detained in a safe environment and in which good order prevails, particular attention shall be paid to the general duty to care for prisoners and to provide a safe environment and adequate health care: the role of prison staff will also receive special attention.
When discussing the right to lawful, reasonable and procedurally fair administrative action particular attention will be paid to the following: the “hands off” approach to the administration of prisons; the audi alteram partem rule; the obligation of the administrative officials to apply their minds to decision affecting prisoners; the importance of a prisoner’s legitimate expectations and the possibility of damages action following an administrative failure.
39 111 of 1998, preamble.
12 The state has in several cases attempted to raise the defence that it has insufficient material resources to secure prisoner rights and this issue will also be discussed.
The possible remedies currently available to prisoners in the event of a violation of prisoner rights will be discussed with particular reference to damages, interdicts, declarations of invalidity and the right to legal assistance.
A fundamental issue when discussing prisoner rights is the creation of a theoretical framework that can be used to assess when a limitation of prisoner rights exceeds that which is constitutionally permissible. Imprisonment as a form of punishment is a limitation of fundamental rights and therefore the purposes of punishment are also to be studied. A framework will be proposed that distinguishes between limitations that do and do not contravene the prohibition on torture or cruel, inhuman or degrading treatment or punishment. The framework will also draw heavily upon the “type of the punishment cases” and will consider the impact of limitations that frustrate the purpose of punishment.
As part of prisoner rights, the right to parole will be discussed, including medical parole and non-medical parole.
The principles in this area of the law in many instances interact and overlap with each other. This will become apparent during the discussions but as an example, the residuum principle and the principle of legality may, to a certain degree, be seen as opposite sides of the same coin but our courts deal with them separately.
The fourth chapter consists of a study of the theories of punishment. Section 36 of the Constitution provides for possible limitations of the fundamental rights contained in the Bill of Rights, provided that the limitation is justifiable in terms of the criteria specified in section 36 of the Constitution. The test is a purposive test and in the context of punishment the purposes, which the limitation must achieve in order to be justifiable, are the four common law purposes of punishment. These have been held by our courts to be retribution, prevention, deterrence and rehabilitation.40
40 S v Makwanyane supra; S v Williams 1995 (3) SA 632 (CC).
13
This limitation has a three-fold impact on prisoner rights. Firstly, where a particular limitation frustrates the purposes of punishment it should not stand up to constitutional scrutiny.41 Secondly, if imprisonment as a “type of punishment” is challenged on the basis of conditions of detention then the four purposes of punishment are the yardstick by which its constitutionality will be measured.42 Thirdly, if it is demonstrated that imprisonment in general does not achieve its purposes then it follows, as a matter of logic that our courts are to adopt a reductionist policy towards imprisonment.43
In order to analyse these four purposes it is necessary to consider and clarify the terminology employed by the different groups of theorists.
Each purpose will then be considered from different perspectives: firstly, the approach adopted by jurists; secondly the approach adopted by the South African Courts; thirdly the views of other theorists relating to these purposes and the studies conducted in that field of study and finally the approach adopted by the Correctional Services Act.44
The fifth chapter will be a study of systemic problems in South African Prisons. In this chapter the conditions in South African prisons will be explored and evaluated. The sources relied upon will as far as possible be official government sources such as the Jali Report, the annual reports of the inspecting judge and reported cases – and also, where necessary, academic literature.
In order to explore and evaluate the conditions in South African prisons it is useful to approach the research from the perspective of the systemic problems identified by the inspecting judge and by Judge Jali. These problems exist in most of the prisons
41 S v Williams supra. 42 S v Makwanyane (CC) supra; S v Williams supra. 43 Coyle “Commentary on Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules” (2006) 40; Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 88 onwards. 44 111 of 1998.
14 and are prevalent.45 They do not occur in isolation, but compound and impact upon each other.
The systemic problems include shortage of staff, lack of medical facilities, prison overcrowding, inadequate provision for staff development, HIV/AIDS infections, infrastructure and maintenance problems, gangsterism, requests for prisoner transfers, ineffectiveness of parole boards, administration of prisoner transfers, staff development needs, excessive focus on security, assaults and lack of rehabilitation and vocational training programmes.46 Only the more serious of the systemic problems will be considered.
Hence the problems to be considered in this research will include lack of medical staff and facilities, prison overcrowding, prison gangs, prison staff and the lack of rehabilitation programmes.
Prison overcrowding was chosen as a topic because it comprises a violation of prisoner rights. Gangs and prison staff were chosen because these are often sources of corruption and violence against prisoners. These factors cause imprisonment to become arbitrary and as such would be an important consideration in any debate about the constitutionality of imprisonment as a “type of punishment”. Lack of medical staff and facilities was chosen since they feature prominently in South African case law and because of the serious nature of their long term impact upon prisoners. For example, a prison rape which causes HIV has a long term impact on the prisoner which extends beyond the prison sentence. Finally, rehabilitation is crucial because of its role in any determination of prisoner rights in terms of section 36 of the Constitution.
45 Judicial inspectorate of prisons “Annual Report for the period 1 April 2006 to 31 March 2007” (31-03-2007) Judicial Inspectorate for Correctional Services
15 The final chapter will contain conclusions and recommendations. In this context it will be submitted that the S v Makwanyane47 and S v Williams and Others48 judgments have three-fold significance, as follows:
Firstly, where there are limitations of prisoners’ fundamental rights these must not frustrate the purposes of punishment. If they frustrate the purposes of punishment they are not justifiable and should be declared unconstitutional.
Secondly, imprisonment as a “type of punishment” may in certain circumstances be declared unconstitutional, as follows: firstly, where conditions of detention have deteriorated so far that the state has demonstrated a clear inability to provide conditions of detention, generally, that do not violate the prohibition on cruel, inhuman and degrading treatment or punishment; secondly, these conditions will result where there are systemic problems such as high levels of overcrowding, failure of health services, an inability to properly examine and treat prisoners with infectious diseases, a failure to segregate those prisoners and other conditions similar to those identified in the matter of Brown v Plata.49 The condemnation of the court will probably not be permanent but will demand a remedy that changes the conditions of detention such as the imposition of a population cap. If it were to be permanent then this would of course support the abolitionist argument.
Thirdly, since research has shown50 that prisons generally do not achieve the purposes of punishment and furthermore since there is an awareness of the detrimental effects of imprisonment, this has led to abolitionist and reductionist approaches to imprisonment as a type of punishment.51 Reductionists argue for a reduction of the overall prison population by proposing varying strategies that limit the number of people who go to prison and the length of the sentence that is to be served.52
47 1995 (6) BCLR 665 (CC). 48 1995 (3) SA 632 (CC). 49 (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2-03-2013). 50 See Ch 5 below. 51 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 20. 52 Ibid.
16
The conclusion will be considered in two parts. The first is that of the abolitionist and reductionist arguments in the context of South African prisoner law. Once these two aspects have been considered, submissions will be made for a possible holistic response to the abuse of prisoner rights as identified in the section dealing with systemic problems in the prison system.
The proposals will include proposals for the implementation of a system of restorative justice, the appointment of special masters and possible amendments to the Correctional Services Act to increase the powers of Independent Prison Visitors, the Visitors’ Committee and the office of the Inspecting Judge, as well as the creation of an office for a Prisoner Protector.
5. METHODOLOGY
The method to be employed in researching the above questions will vary in each chapter although academic literature will be relied upon where available.
It will be noted in the chapter on history of prisons that prisons are social institutions.53 Prisons are also a manifestation of another aspect of social life and social policy, namely, punishment.54 It is thus necessary to research, from an historical perspective, the philosophy underlying prisons and punishment at the time that the prison became the dominant form of punishment in society. It is also necessary to research whether or not imprisonment has been effective in achieving those ends. It is also necessary to research the history of the interaction between prisons and human rights law.
The prison is one means of punishment. There are many other models of punishment and these include those in traditional African cultures. These will also be considered where necessary, in order to suggest possible alternatives to imprisonment as a form of punishment.
53 Muller “Social Institutions: Stanford Encyclopedia of Philosophy” (2011)
17
The history of prisons will conclude with the tension that has arisen between imprisonment and human rights law in the twentieth century, as well as the first international efforts made to reconcile the two. The next section will study the continued developments in international prison law.
In order to research this, various sources will be relied upon, including journal articles and textbooks.
The South African Constitution provides that when a court is interpreting the Bill of Rights it must promote the values that underlie an open and democratic society based on human dignity, equality and freedom: moreover it must consider international law and may also consider foreign law.55 Furthermore the pre-amble to the Correctional Services Act provides that the Act recognizes international principles on correctional matters.
Therefore, when considering fundamental rights in the context of prison law in South Africa it is necessary to research the international principles of prison law and those of comparative prison law.
The various relevant international and regional human rights instruments will be researched as well as the developments in European and American domestic law, as well as developments in Africa where this is possible.
The principles of South African prison law will be researched and a comprehensive review of the case authorities will be conducted. Based on this research, the existing principles of South African prison law will be identified and certain new principles will be proposed.
Furthermore, a framework for resolving disputes involving prisoner rights will be proposed. The research in this section will be based primarily upon the existing case law and academic literature.
55 S 39.
18
The aforesaid review of the case law will indicate the importance of the theories of punishment in determining the justifiability of limitations of prisoner rights, as well as the justifiability of imprisonment as a means of punishment. Thus, the next section to be studied will be the theories of punishment.
A review of the academic literature will be conducted in order to ascertain the effectiveness of imprisonment and of non-custodial punishments in achieving the purposes of punishment. Furthermore, the impact of different conditions of detention will be researched in order to ascertain which conditions of detention frustrate the purposes of punishment and are therefore not legally justifiable. Various text books and journal articles will be relied as sources for this research. A theoretical framework flowing from the research objectives will set out the common law principles of prisoner rights in South Africa, as well as the conditions of detention that should exist in order for imprisonment to be legally justifiable.
The following section will comprise a study of existing conditions of imprisonment in South African prisons. The primary sources which will be relied upon are case law; the report by the Commission of Inquiry into Alleged Incidents of Corruption, Maladministration, Violence or Intimidation in the Department of Correctional Services Appointed by Order of the President of the Republic of South Africa in terms of Proclamation No 135 of 2001, as amended, also known as the “Jali Report”; annual reports by the Judicial Inspectorate for Correctional Services and academic literature.
Finally, shortcomings will be identified with regard to the rights of prisoners and the actual environment in which they are detained. Proposals will be made for enabling prisoners to exercise those rights which are bestowed upon them by the South African legal system. The research which will be relied upon to substantiate these submissions will include textbooks, foreign case law and legislation as well as academic literature.
19 6. EXPLANATION OF TERMINOLOGY
The term “inmate” replaced the term “prisoner” in the Correctional Services Act by way of an amendment to the Act in 2008.56 However, in this research the term “prisoner” will continue to be employed instead of the term “inmate”. There are various reasons for this. Firstly, the South African courts currently still employ this term when prisoner rights are being discussed despite the aforementioned legislative amendments.57 Secondly, international and regional human rights instruments generally use the term prisoner rather than inmate.58
In this thesis the term “he” is generally used when discussing prisoner rights rather than employing the term “she”. This is intended to be gender neutral. There are various reasons for employing this mechanism. Firstly, it is for the sake of convenience since it is cumbersome to employ the phrase “he or she” regularly. Secondly, the principles discussed in this thesis are general principles of prisoner law and are intended to apply to all prisoners. There may be specific concerns that may apply to female prisoners, for example, the rights of a child to receive care from his mother. There may also be specific concerns regarding youthful prisoners which are not addressed in this research. If the term “she” were to be employed there would be a necessity to consider the specific concerns of female prisoners. Thirdly, in South Africa there are substantially more male prisoners than female prisoners and therefore it would also be a more appropriate term to employ when using the singular.59
56 Correctional Services Act by the Correctional Services Amendment Act 25 of 2008. 57 Moegamat Fatieg Jaftha v The Honourable Minister of Correctional Services [2012] 2 All SA 286 (ECP); Lee v Minister of Correctional Services 2013 supra. 58 Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules; Resolution on Guidelines And Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment In Africa The Robben Island Guidelines; Standard Minimum Rules for the Treatment of Prisoners. 59 Sloth-Nielsen “Women and Prisons in South Africa” (2005) Civil Society Prison Reform Initiative
20 CHAPTER 2 HISTORY OF PRISONS
1. Introduction ...... 21 2. Early history ...... 23 3. The English experience ...... 27 4. The American experience ...... 31 5. The Western European experience ...... 36 6. The development of the international prohibition against cruel, inhuman or degrading punishment or treatment ...... 40 7. The South African experience ...... 42 7.1 The prison in sub-Saharan Africa ...... 42 7.2 Pre-colonial Eastern Cape ...... 44 7.3 Pre 1910 ...... 46 7.3.1 Cape ...... 46 7.3.2 Natal ...... 50 7.3.3 The Orange Free State ...... 52 7.3.4 Transvaal...... 53 7.4 United South Africa ...... 54 7.4.1 Pre 1959 ...... 54 7.4.2 Post 1959 ...... 58 7.4.3 Post 1994 ...... 59 8. Conclusion ...... 60
1. INTRODUCTION
In this section the English, American, South African and European experiences with the use of the prison will be considered. These were chosen firstly because they are well documented. Secondly, the English model was imposed on South Africa following colonization of South Africa by the Europeans and the British.60 The American model is of importance because it represents the country with the greatest prison population in the world and it has been extensively studied.61 Thirdly, the European experience will be studied because the English and the European practices influenced each other and prison, as a dominant form of punishment, originated in England and Europe.62
The history of prisons will be traced from their early manifestations until the 18th
60 Van Zyl Smit South African Prison Law and Practice 7. 61 International Centre for Prison Studies “Entire world - Prison Population” (2013) Totals
21 century. The latter period is the one in which imprisonment emerged as the dominant form of punishment in England and Europe. The manner in which imprisonment displaced the violent and brutal punishments that had preceded it will also be discussed.63
In order to more fully understand the impact of human rights law on prisons the history of the prohibition on cruel and unusual punishments will be considered, including the eventual emergence of the prohibition on cruel, inhuman or degrading treatment or punishment.
The pre-colonial position regarding punishment in South Africa will also be considered since imprisonment was a form of punishment introduced during the process of colonization.
Finally, the history of punishment and imprisonment in South Africa will be considered. In this section the pre-colonial Xhosa model of social reconciliation will also be considered.
This section will attempt to locate the South African prison in an historical and international context. The first aspect will be to trace the origin of the modern prison. This research will demonstrate that imprisonment, as the usual form of punishment for crime, is a relatively modern part of human culture. Furthermore, it will reveal that it has its origins in the concept of a humane form of punishment, as opposed to the so-called “blood sanctions” of Europe. In addition we will see that the underlying philosophy has normally been, from its inception, the reform of the offender, from that of “criminal” to that of a “law abiding citizen”. However, despite this humanitarian impulse that supported the creation of prisons, they have generally failed to realize those goals.
Prisons from their inception have usually suffered from a host of problems including the following: want of food, air, space, bedding, classification and moral discipline; the presence of corrupt guards; overcrowding and disease; and failure to reform the
63 Van Zyl Smit South African Prison Law and Practice 3.
22 prisoner. These in turn have often resulted in commissions of enquiry which attempt to resolve these problems. One attempt was to police the prisons, namely, via an inspecting judge: the origins of this strategy will also be briefly discussed. Certain researchers have branded prisons failed institutions and others argue that the very nature of prisons is such that they cannot be reformed.
Furthermore, the development of the concept of the prohibition on cruel, inhuman or degrading treatment or punishment will be researched. This standard, along with the development of human rights’ law, has developed a significant tension between human rights’ standards on the one hand and conditions of imprisonment on the other. This tension then gave rise to certain guidelines on the treatment of prisoners.
One of the consequences of the conflict between the nature of the treatment of imprisoned offenders and human rights’ law is an effort to find alternatives to imprisonment. One option is the European notion of reductionism. No specifically African responses have yet been formulated. The Xhosa model referred to above will be cited later in this research as one possible basis for an alternative response to the failures of imprisonment.
2. EARLY HISTORY
Imprisonment as the primary form of sanction for serious offences was not generally known before the 1700’s.64 There are however instances in which it was employed for this purpose but these are rare.65
There were examples of this in Rome but these very early prisons were noteworthy for the poor conditions of detention.66 An edict of Constantine dated 312 AD was re- published in the Codex Theodosianus. This Codex compiled the laws of the Eastern Roman Empire under the Christian emperors from 312 AD until 429 AD. The edict of Constantine provided for the appointment of inspecting judges who would ensure that
64 Van Zyl Smit South African Prison Law and Practice 1. 65 Peters “Prison before Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society (1998) 1. 66 Peters “Prison before Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 18.
23 sufficient rations were provided to prisoners. They were also required to ensure that prison guards had not accepted bribes from the prisoners and that the prisoners under the care of the guards were bathed regularly. Furthermore, the edict provided for conditions of detention that were not inhumane.67
E.M. Peters, when discussing the prisons in Rome circa 300, argues that punitive imprisonment for long periods was rare. Prisons were largely for the purpose of detaining prisoners of war and hostages: they were possibly also used as places of execution. However they were not generally places of punishment but rather of confinement.68
The usual means of punishment in medieval Europe are referred to as “blood sanctions”.69 The crime was considered to be an offence against the sovereign and the punishment was to be paid with the blood of the offender.70 There were five categories of physical punishment in early modern Europe and the more severe the crime the more severe the punishment. The order of severity was: whipping; burning the skin; mutilation, for example, by blinding or amputation; a form of capital punishment seen as a “merciful” instant death; and another version which was prolonged, with for example, breaking on the wheel and then the coup de grace or being burnt alive.71
The punishments prescribed for various offences in the German Empire were published in 1532. Most of the offences were visited with the type of “blood sanctions” referred to above. However, there was provision for the long term
67 Theodosian Code dated 320 CE in Peters “Prison before Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society (1998) 19. 68 Peters “Prison before Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 18, 19. 69 Langbein "The Historical Origins of the Sanction of Imprisonment for Serious Crime" (1976) Yale Law School Yale Law School Legal Scholarship Repository
24 incarceration of dangerous criminals who lacked surety.72 This appears to be an early example of incapacitation of dangerous offenders by way of imprisonment.
There were three types of imprisonment employed in medieval society namely, pretrial detention, pending a decision to impose a “blood sanction”; coercive detention, to coerce the prisoner to take a step, such as pay a debt, and finally penal imprisonment.73
The development of penal imprisonment for serious offences was through the ecclesiastical courts. These courts were responsible for the discipline of clergy. Their power of capital punishment was removed and replaced with imprisonment as an alternative. Even when they did have the power to utilize capital punishment it was generally not employed for clergy since this was not consistent with their position in the church.74 Imprisonment was to be for a period that was commensurate with the crime and for the purpose of re-integration into society.75
One of several origins of modern prisons were the “hulks”. These were ships that were anchored and used solely to house convicts. This strategy was employed from the 16th up until the early 19th century. These vessels were powered by oars. Initially oarsmen were attracted by the payment of wages but the demand for manpower was increasing and not enough oarsmen were available. In order to supplement the crew, slave labour was later employed. Finally, as the need for manpower increased, condemned criminals, who would otherwise have received capital punishment, were sentenced to row the galleys. This need however declined in the 1800’s, leaving the galleys to be used as “hulks” that convicts slept in.76
Unrelated to the development of the galley system, but also part of the origin of the
72 Constitutio Criminalis Carolina of 1532 of the German Empire: Arts 176 and 195. 73 Langbein “The Historical Origins of the Sanction of Imprisonment for Serious Crime” 38
25 modern prison in the 16th century, were the problems of vagrancy and poverty.77 Various actions were taken in response to this problem including the conversion in London of Bridewell palace into a ‘house of correction’.78 This then became a generic term for such houses of correction in England.
The purpose of the workhouse, or house of correction, was to train the prisoner in the regimen of honest labor. It would supposedly teach him certain skills which would make him a potentially skilled employee upon release and furthermore reform his character through strict discipline and moral teachings.79 The workhouse system that sought reformation through labour and religious teachings then spread to Holland and the rest of Europe. The primary potential benefits were the instituting of a process of reform as well as transmission of skills.80
The use of the workhouse as a means of reformation of the poor and wayward was later extended to the petty criminal, that is, someone for whom blood sanctions were too harsh and corporal punishment too ineffectual. Imprisonment with hard labour had two principle advantages. Firstly, it was reformative in that it sought to correct and punish the offender and also to provide the offender with a set of skills that he could employ upon being released. This would make him economically useful upon his release. Secondly, the costs of detention would be off-set by the production of the workhouse, thereby making it less of a drain on the public purse. Typical production activities would include weaving and making of gloves, silk lace, pins, felts and tennis balls.81
Such was the success of the workhouse in England and Holland that a demand developed throughout most of Europe for the establishment of similar institutions in various cities.
77 Langbein “The Historical Origins of the Sanction of Imprisonment for Serious Crime”
26
By the mid-seventeeth century the workhouses began receiving offenders who had been convicted of serious offences and no longer only the poor, vagabonds and petty offenders. Youths who would otherwise have been sentenced to death were being received into workhouses. Sentences of life imprisonment were being imposed primarily for reasons of labour exploitation and were an alternative to the galley sentence. The Dutch “tuchthuis” became the German “zuckthaus”. The concept of the workhouse began to fade and the modern sense of penitentiary developed. Prison sentences shorter than life were employed for a number of reasons and these included provision for reform, earlier release for skilled workers, making criminal punishment more humane and exploitation of forced labour. The galley sentences and prison sentences led to a substantial decrease in the use of blood sanctions, including maiming and death.82
Prior to the seventeenth century the death penalty in England was imposed even for minor offences such as petty theft. Furthermore, the galley sentence never found its way into England. However, an alternative was developed, namely, transportation to the colonies, together with indentured labour upon arrival. This was spurred by a desire to correct and reform rather than to put the offender to death. The decline in the use of the death penalty from the eighteenth to the nineteenth was approximately 90%.83
3. THE ENGLISH EXPERIENCE
The workhouse was typically a family business run by a mother and a father and this then changed over time into a prison workhouse.84 The right to run these businesses was closely guarded and in England the jailer was initially paid by the prisoner for services rendered and this was the source of his income. As the ability to transport prisoners to the colonies faded with independence in America the prison became the primary means of punishment. The conditions deteriorated in the prisons and
82 Langbein "The Historical Origins of the Sanction of Imprisonment for Serious Crime" 35 52 53. 83 Langbein "The Historical Origins of the Sanction of Imprisonment for Serious Crime" 35 56. 84 Spierenburg "The Body and the State" in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 44 64.
27 problems arose with overcrowding, diseases, corruption, gambling, drinking, filth, noise and disorder. The result of these conditions of detention was that thousands of prisoners were dying in prisons annually.85
The conditions were brought to the attention of the British public by John Howard and the response to the appalling conditions in prisons was very disapproving.86 From here arose efforts to reform prisons in order that they might become places where the prisoner could be reformed into a model citizen. John Howard led this reform movement. He based his ideas on the continental system of solitary confinement, religious instruction and a regimen of labour. His influential writings in turn gave rise to the Penitentiary Act.87 In this period prison reform became a major political issue.
The modern prison thus developed in what is known as the “age of enlightenment” or “age of reason”. This was an intellectual movement of the 17th and 18th centuries during which the use of reason was regarded as of paramount importance. The standard against which knowledge was measured was the scientific method, as opposed to faith.88
Part of this process of reforming the prisoner was the belief that prison warders were to be persons of good moral fibre who could communicate the necessary values to the prisoners.89 A further part of the enlightenment developments relating to punishment included the idea of deterrence. The two authors who created the deterrence framework were Beccaria and Bentham. Cesare Beccaria90 argued that certain and severe punishment would offset the anticipated gains of crime. Jeremy Bentham91 argued that human beings are rational and add up the sum of all the values of all the pleasures on the one side, and of all the pains on the other. If the individual concludes that the utility of crime outweighs the disutility of crime then he
85 McGowen “The Well Ordered Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society (1998) 71 80. 86 Van Zyl Smit South African Prison Law and Practice 3. 87 Penitentiary Act of 1779. 88 Rockmore “Enlightenment and Reason” (1987) The Journal of Philosophy Vol. 84 699. 89 McGowen “The Well Ordered Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 71 80. 90 Beccaria On Crimes And Punishments (1764) Ch 12. 91 Bentham The Principles of Morals And Legislation (1789) Ch 1.
28 would choose to offend, and vice versa. Bentham’s contribution was also the panopticon which was a design for a prison in which the warder is in the centre of the building and the cells are located around the outside. The warders could thus see, from their central viewing area, all the cells and what the prisoners were doing.92
Thus from the very inception of the modern prison it had two principle goals, namely deterrence93 and rehabilitation. The purpose of rehabilitation was present in the prison’s philosophical roots, legislation and architecture.94 It was during the nineteenth century that imprisonment became the normal punishment in society. As a result there was large scale imprisonment of offenders. The problems relating to large scale imprisonment were apparent: the want of food, air, space, bedding, classification, moral discipline and the presence of corrupt guards, together with overcrowding, disease and failure to reform the prisoners.95
Opposed to the believers in reform were the sceptics of reform. The witnesses before the Carnarvon Committee in 1863 refuted the belief that the prison produced a reformed man as a result of individualised treatment and testified rather that the prison and conviction revealed the true identity of those who passed through its gate. Thus, they argued that through stigmatization the prison had not cured the crime but had branded the offender as a criminal and this taint clung to the prisoner long after his release.96
Towards the end of the nineteenth century there was a fear that some prisons were hasher than others and therefore had a greater deterrent effect than others. There was also a demand for greater central funding of prisons. These two concerns led to a call for centralization of prison administration. The Disraeli government of 1874
92 Bentham “Proposal for a New and Less Expensive Mode of Employing and Reforming Convicts” (1798). 93 McGowen “The Well Ordered Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society (1998) 71 94. 94 Van Zyl Smit South African Prison Law and Practice 4; McGowen “The Well Ordered Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 71 91. 95 McGowen “The Well Ordered Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 71 80 96. 96 McGowen “The Well Ordered Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 71 98.
29 had promised tax cuts, but was hard pressed to find places in which to cut government spending. A plan was proposed by Edmund Du Cane, Director of Convict Prisons, to nationalise the local prisons in a bid to cut government spending. This plan failed, but what it did achieve was a form of uniformity between convict prisons and local prisons. As a result staff and operating procedures became standardised.97
Up to this point convict and local prisons were completely independent. The two types of institution did not have the same administrators, nor the same source of financing, nor shared staff, nor shared procedures or even a common philosophy. Convict prisons dealt with prisoners sentenced to three or more years and local prisons those sentenced to two years or fewer. The view that was to form the basis of the process of standardization was that the worse the punishment, the more deterrent an effect it would have. A policy was pursued to ensure that prisons would have a greater deterrent effect: in other words, harsh conditions of detention were instituted. Under Du Cane the national policy regarding the treatment of prisoners was that of hard fare, hard labour and hard board. Hard fare meant that prisoners received a near starvation diet; hard board meant that they slept on a solid board and hard labour meant non-productive work for six hours a day on the “wheel”. The “wheel” was a large wheel in which the prisoner walked, effectively climbing steps for six hours per day.
Harsher punishments were called for regularly and the prison was seen as a place for punishment and not as the punishment in itself. The diet was insufficient and prisoners resorted to eating candle wax, marrow of putrid bones and poultice from the garbage heap near the cesspool of the jail. The regime was one of starvation. The result was that in most cases the sentence was for a month or less and in the most extreme cases four years but the overwhelming majority of cases was for three months or less. One judge remarked that he had only twice passed a four year sentence and in one case the man died; in the other he went mad. The conditions were so severe that it was believed that a period of imprisonment for more than a
97 Van Zyl Smit South African Prison Law and Practice 6.
30 month would cause insanity.98
In 1842 Pentonville prison was built near London. This prison had five radiating wings, all visible to staff at the centre. This design intended to keep prisoners isolated and was based on the New York, or Auburn system in the United States of America.99 This Auburn penitentiary has been described as the most important prison in the history of penology because of the influence it had over the design of prisons worldwide.100
Prison conditions in England were of such a nature that they resulted in riots, all destructive and some murderous. These riots became a regular occurrence in England.101
4. THE AMERICAN EXPERIENCE
Initially the American colony applied the harsh English system of penalties. There were three types of penalty that were imposed. These were fines, some type of violent corporal punishment and the death sentence.102
When the American colonists declared independence from Britain they disavowed these brutal and violent forms of punishment. Motivated by humanitarian impulses they decided instead to employ the prison as a means of reforming the offender. These innovations have been largely attributed to the influence of the Quakers in West Jersey and in Pennsylvania.103 These Pennsylvanian reformers were influenced by the writings of the prison reformers, John Howard and Jeremy Bentham.104
98 McGowen “The Well Ordered Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 71 135. 99 Teeters "The Prison Systems of England" (1951) Vol 41 No 5 Journal of Criminal Law and Criminology 578 582; Van Zyl Smit South African Prison Law and Practice 5. 100 Barnes “The Historical Origin of the Prison System in America” (1921) Vol 12 No 1 Journal of the American Institute of Criminal Law and Criminology 35 36. 101 McGowen “The Well Ordered Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 71 139. 102 Barnes “The Historical Origin of the Prison System in America” 35 37. 103 Barnes “The Historical Origin of the Prison System in America” 35 38. 104 Barnes “The Historical Origin of the Prison System in America” 35 45.
31
The idea embraced would today be described as individual deterrence where the conditions of detention were marked by austerity and harsh discipline105. The rule was one of lack of comfort, isolation and silence while infractions would be disciplined with the whip as quickly as possible.106 The stated goal of the prisons was the reform of the criminal.107
This hope of rehabilitation was however not realised. The conditions in the early prisons were deplorable. There were attempts by interested groups to alleviate the hardships of prisons from the very earliest stages in America. An example of such an organization was the Philadelphia Society for Alleviating the Miseries of Public Prisons which was active in the late eighteenth century.108
In 1867 Enoch Wines and Theodore Dwight conducted a survey of American prisons. There were three grades of prisons in the post-civil war era. These were the state prisons for convicts, county jails for those arrested and awaiting trial and intermediate prisons, which went by various names but catered for lesser crimes such as vagrancy.
Most prisons subscribed to the Auburn principle, namely, that prisoners worked together in the day but were to be isolated at night. This was in contrast to the Pennsylvania system, where prisoners were supposed to be in isolation twenty-four hours a day. The report of Wines and Dwight outlined the many shortcomings of the prisons. The primary problems in prisons around the late 1800s are immediately recognizable. These problems included the following: overcrowding; filth; exploitation of prisoners for purposes of labour; failure to find a solution to the problem of providing for rehabilitation; often severe corporal punishment of prisoners for institutional offences; poor quality of staff; staff brutality; disgusting conditions which contributed to health risks; absence of a proper centralised structure. It was
105 Rothman “Perfecting the Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society (1998) 100 105 110. 106 Rothman “Perfecting the Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 100 109. 107 Barnes “The Historical Origin of the Prison System in America” 35 49. 108 Barnes “The Historical Origin of the Prison System in America” 35 46.
32 anticipated that if prisons were abandoned the only solution would be corporal punishment. This solution was unacceptable to the modern sensibilities. This led to sincere attempts to reform prisons in order to address the above concerns and make them more humane.109
Various responses to the above reports evinced a desire to produce prisons which were more humane and would be of a reformatory nature. These institutions included the Elmira reformatory, which was designed for younger, less hardened offenders and which provided vocational training and parole, as well as a limitation on the amount of punishment guards could visit on the prisoners. These reformatories were also a failure.110
In the early twentieth century drug abuse emerged as a new problem in prisons. The desire to consume any substance such as cocaine, heroin, opium and bay rum which would give the prisoners some form of excitement and an escape from the tedium of prison life, remains a problem currently.111 Drug abuse has been linked to the conduct of corrupt warders and gangs. These are among the primary sources of human rights abuses in prison.112
The early twentieth century marks the advent of the curative model of prisoner treatment. The philosophy supporting these models is that prisoners are in some way ill, whether psychologically, socially or in some other way. The prison was believed to be the appropriate place in which to diagnose the illness, decide upon the appropriate treatment and then to administer the cure to the prisoner. This would cause the prisoner to become a healthy member of society both for his own benefit and that of society.
The first such model was the psychotherapeutic model. This led to the appointment of psychologists and psychiatrists to the prison in order to administer cures
109 Rotman “The Failure of Reform United States, 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society (1998) 151 154. 110 Rotman “The Failure of Reform United States, 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 151 156. 111 Rotman “The Failure of Reform United States, 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 151 158. 112 Jali Report 160.
33 necessary for prisoners who suffered from some or other pathology.113 This was largely a token development in the sense that a negligible number of mental health professionals were appointed. However this development had several very important consequences. This included the advent of medical nomenclature in describing prisoners. It also included the idea of an indeterminate sentence in which the prison authorities did not have to discharge the prisoner until such time as he was cured. These models also led to the classification of prisoners into categories of risk which were then treated differently depending on whether classified as high risk or low risk. Initially the practice of classification was aimed at different types of treatment for different types of conditions but it resulted in different types of incarceration. This period also saw the introduction of the social learning model which emphasised the idea of curing for the purpose of re-integration. Finally the importance of reinforcing the bonds of the prisoners with the community was also emphasised.114
Despite the best intentions of prison reformers and efforts to implement rehabilitative programmes, prisons remained shabby, dirty and dangerous places which failed to rehabilitate. This has led many students of prisons to conclude that prisons are generally criminogenic.115 The conditions of detention remained very poor with prison authorities employing brutal practices. These practices included the following: chaining prisoners to a wall; chaining prisoners with balls and chains; and solitary confinement in a tiny dark and unventilated cell infested with vermin whilst simultaneously limiting the prisoner’s consumption of food and water for long stretches of time.116
The experience in America led some historians and sociologists to conclude that the dismal record of reform in prisons was an inevitable by-product of imprisonment and
113 For example, Kaimowitz v Department of Mental Health For The State of Michigan No 73·19434·Aw (Mich. Cir. Ct., Wayne County, July 10, 1973). In this matter the prisoner was offered a psychosurgical procedure that sought to alleviate his aggressive behaviour. One of the arguments that was put forward was that voluntary consent could not be granted given his mental state. 114 Rotman “The Failure of Reform United States, 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 151 159. 115 Tonry and Petersilia “American Prisons at the Beginning of the Twenty-First Century” (1999) Vol 26 Crime and Justice Prisons 1 6. 116 Rotman “The Failure of Reform United States, 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 151 164.
34 that the idea of trying to reform prisoners behind bars is flawed from the start.117
It was around the late 1920s that large prisons housing thousands of men emerged in America. Sociological studies found that in these conditions prisoners organised themselves into groups employing their own codes of norms and classifications. These prisoners who had organised themselves into these various groups organised various illegal activities in the prisons. They often acted in concert with certain of the warders.118
In the 1950's prison riots again drew attention to the same litany of problems that are common place in prisons and that include poor hygiene, poor health care, guard brutality, enforced idleness, lack of professional rehabilitative programmes and overcrowding.119
However, as in Europe, the development of human rights law gave rise to significant challenges to the conditions of detention.120 The human rights movement led to significant challenges to conditions in prisons in the United States of America and courts became extensively involved in the management of prisons. This in turn led to debates about the introduction of programmes of restorative justice.121
It may thus be concluded that from the inception of prisons in the United States of America prison conditions have generally been very poor, and characterized by overcrowding, brutality, corruption, poor food, lack of health care and a failure to rehabilitate. This occurred despite efforts of different schools of reform to introduce models of rehabilitation into the prisons such as the psychotherapeutic model and the social learning model.122 One of the prominent schools of thought that emerged in
117 Garland Punishment and Modern Society A Study in Social Theory 232. 118 Rotman “The Failure of Reform United States, 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 151 166. 119 Rotman “The Failure of Reform United States, 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 151 168. 120 Rotman “The Failure of Reform United States, 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 151 172. 121 Tonry and Petersilia “American Prisons at the Beginning of the Twenty-First Century” 1 10. 122 Rotman “The Failure of Reform United States, 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 151.
35 the United States of America is that “nothing works” in prison to reform criminals.123
However there are many problems that exist in American prisons other than the failure of reform. One of them is problems relating to gangs. This problem has several consequences, namely, criminal activities of gangs inside the prison, violence, riots and the resultant need for protective custody.124 Moreover health problems remain a serious concern in prisons in the USA. Three major health problems have been identified in American prisons, namely HIV/AIDS infection, treatment resistant strains of TB and geriatric and terminally ill patients. Prisons have always been major breeding grounds for epidemics and the combination of the first two present ominous signs for the future.125
It has been argued that for these reasons non-custodial punishments are preferable to prison sentences where possible. Other reasons for an increase in the use of non- custodial punishment is a saving of money and a reduction in the rate of recidivism.126
5. THE WESTERN EUROPEAN EXPERIENCE
The first institutions in the world that presaged the advent of modern prisons were San Michele Prison erected in Rome by Pope Clement X in 1704 and the prison in Ghent in Belgium in 1734. These prisons provided for accommodation in cells, and classification of prisoners: moreover they were established with the goal of reforming prisoners. Initially they attracted little attention but they influenced the prison reformer, John Howard. He discussed them in his writings and these writings were influential in America and influenced the Auburn system.127
123 Tonry and Petersilia “American Prisons at the Beginning of the Twenty-First Century” 1 8; Morris “The Contemporary Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society (1998) 202 221. 124 Morris “The Contemporary Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 202 221. 125 Morris “The Contemporary Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 202 221 222 223 224. 126 Tonry and Petersilia “American Prisons at the Beginning of the Twenty-First Century” 1 11; Morris “The Contemporary Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 202 228. 127 Barnes “The Historical Origin of the Prison System in America” 35 43.
36
Initially the prisons in the 19th century were primarily intended to house the poor, the unskilled, the unemployed and those judged to be in need of social and moral discipline and instruction. Prisons became the primary means of punishment for offenders and the prisoner numbers increased dramatically.128
In the nineteenth century the prison policies across Europe and North America were substantially similar. The two areas shared philosophical influences and there was consensus based upon classical penal theory. In terms of this theory the prisoner would atone for his sins through his prison sentence. More importantly, through the strict disciplinary regime enforced on the prisoner, he would be reformed. This led to a criticism of short prison sentences which supposedly did not allow enough time for the proper reformation of the offender.129
Early beliefs about the causes of crime included a belief in the role of solitary confinement of prisoners. This belief was incorporated into the design of prisons. These prisons remain in use today and the design based upon the practice of solitary confinement continues to cause difficulties
As the number of prisoners grew across the world by the 1900’s, so did overcrowding. The cost of building made it impossible to keep up with governmental policy decisions which led to the employment of prisons as a primary means of punishment for most crimes.130 Conditions in prisons were poor and there was a general consensus that rehabilitation as an ideal had failed as recidivism rates rose.131
Two schools of thought emerged regarding penal policy. Both sought the reformation of the offender. The first was the classical school which emphasized religion and
128 O'Brien “The Prison on the Continent Europe 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society (1998) 178 179. 129 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 3. 130 O'Brien “The Prison on the Continent Europe 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 178 181 199. 131 O'Brien “The Prison on the Continent Europe 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 178 181, 200.
37 solitary confinement. The second theory was that the causes of criminal conduct were biological, physiological and sociological. This latter school of thought sought to cure the prisoner. The impact of this was that the prisoner was only to be released when cured. This held out the possibility of indeterminate sentences.132
Thus, from the late 19th century prisons and the conditions of detention, coupled with failures to reform the prisoner, became the focus of much criticism. These criticisms included the quality of guards, who were from a similar background as the prisoners, and consequently their ability to assist with the rehabilitation of offenders was questioned.133 Further criticisms related to the design of the prisons which were from the previous century and reflected a particular penal philosophy. This included a belief in solitary confinement of all prisoners134 and also the manner in which prisoners should be employed in the prisons. There were also concerns about the physical infrastructure which was old and unhealthy. Further criticisms of prisons included prisoner remuneration for labour and what impact their productive capacity would have on other labour outside the prison. Criticisms also focused on the failure to impart meaningful skills to the prisoners135; the problem of recidivism; the development of prison sub-cultures, including gangs and high levels of homosexuality.136 However the primary concern was that prisons did not rehabilitate but instead fostered a culture of recidivism137.
There were substantial concerns about the conditions of imprisonment in Europe and this led to the formation of the international Penal and Penitentiary Commission. This commission compiled the Standard Minimum Rules for Prisoners in 1924 and these
132 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 3. 133 O'Brien “The Prison on the Continent Europe 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 178 179. 134 O'Brien “The Prison on the Continent Europe 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 178 180. 135 O'Brien “The Prison on the Continent Europe 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 178 182 183. 136 O'Brien “The Prison on the Continent Europe 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 178 184 187. 137 O'Brien “The Prison on the Continent Europe 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 178 187 188.
38 rules were adopted by the League of Nations in 1936.138
Various schools of thought emerged in Europe regarding the causes of criminal behaviour. These included biological determinists that regarded criminals as deviants who could not be cured and also the social-environmentalists who were of the opinion that specialised cures were necessary which the prisons could not provide. The effect of these views on both public and expert opinion was that the prison could not fulfill its original mandate of treatment and reintegration of the individual into society. Thus, although imprisonment was important in the field of alternative punishments, it was from a policy perspective to become the punishment of last, and not first, resort. Punishment became based in the community with a large number of non-custodial sanctions being employed.139 This view which was initially formed by the failure of rehabilitation is now a part of European prison policy and is also supported by European human rights standards.140
The Western European experience however presents a different direction from the American experience. The American approach is one which considers the prison as the primary form of punishment and it favours an austere environment with little opportunity for preparation for release into society. The European approach, on the other hand, no longer favours the prison as the dominant form of punishment.141
The impact of human rights law on prison law is substantial. However, this aspect is to be dealt with in the section on comparative and international law.
Prior to turning to the South African experience with prisons it is necessary to trace the development of the prohibition against cruel, inhuman and degrading punishment or treatment which started as the prohibition against cruel and unusual punishment.
138 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 5. 139 O'Brien “The Prison on the Continent Europe 1865 – 1965” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 178 188; Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 5. 140 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 87. 141 Ibid.
39 6. THE DEVELOPMENT OF THE INTERNATIONAL PROHIBITION AGAINST CRUEL, INHUMAN OR DEGRADING PUNISHMENT OR TREATMENT
In various legal systems throughout Europe the lex talionis served as a restriction on punishment, that is, the punishment was to be in proportion to the offence and not in excess of it. There were laws in numerous legal systems in early Europe that specified what punishment would be administered for which crime. The problem of excessive fines was of such a concern that it became the focus of three chapters of the Magna Carta. By the late middle ages it was a clearly established principle of law that the punishment should fit the crime. In other words, the punishment should not be, by reason of its excessive length or severity, greatly disproportionate to the offense charged.
In the late 16th century Sir Robert Beale became the first English jurist to argue that cruel methods of punishment are unlawful. However by 1689 England had no prohibition on cruel or barbarous methods of punishment. The prohibition was on excessive punishments, but the methods of punishment, provided they were proportionate, were often extremely violent. An illustration of this was the punishment for treason which involved carrying the convicted man on a cart to the gallows where he was hanged. He was not permitted to die but cut down whilst still alive, disemboweled and his bowels burnt whilst he watched and then he was beheaded and finally quartered.142
In 1689 the English legislature drafted a bill of rights, named the English Bill of Rights of 1689. Clause 10 of the Bill of Rights contained a provision that excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. At no stage however, was there any law that prohibited the type, or severity, of bodily punishment. This however was firstly a prohibition against the imposition of punishments that were not authorized by law or that were beyond the jurisdiction of the sentencing court, and secondly, a codification of the common law prohibition on disproportionate penalties.143 In this context cruel has its traditional meaning, namely, severe.
142 Granucci “Nor Cruel and Unusual Punishments Inflicted: The Original Meaning” (1969) 57 (4) California Law Review 839 854. 143 Granucci “Nor Cruel and Unusual Punishments Inflicted: The Original Meaning” 839 860.
40
However, the American colonists did not interpret it in this way. In an independent development in the colony of Massachusetts Bay there were disputes about the power of Magistrates to award punishments without having a legislative basis for doing so. By 1639, two reverends, Ward and Cotton, submitted draft codes: Ward’s was accepted into law under the title, Body of Liberties. One of the clauses in the code was a prohibition against bodily punishments that are inhumane, barbarous or cruel. It has been argued that Ward was influenced by Sir Robert Beale’s arguments.144
In 1776 the American colony had resolved to declare itself a state independent of England. Two resolutions were passed. The first unanimously instructed Virginia's delegates to the Continental Congress to propose a declaration of independence from Great Britain and the second was to prepare a declaration of rights. The delegate from Fairfax was one George Mason, a plantation owner, who proposed a bill of rights and a constitution for state government which included in it a clause that provided that excessive bail ought not to be required, nor excessive fines be imposed, nor cruel and unusual punishments inflicted. This clause was thus a direct copy of the prohibition in the English Bill of Rights. This then became a standard clause in the constitutions of other states and became the Eighth Amendment to the United States Constitution in 1791.145
It is apparent from the discussions surrounding the drafting of the United States constitution as well as the views expressed by early jurists that the cruel and unusual punishment clause was directed at prohibiting certain methods of punishment.146 This was then expanded, by interpretation, to include punishments that were disproportionate to the offense.147 In other words due to a misinterpretation the clause was interpreted to mean a prohibition on types of punishment, something that it never meant in England. This interpretation was later expanded to include that original English definition.
144 Granucci “Nor Cruel and Unusual Punishments Inflicted: The Original Meaning” 839 847-843. 145 Granucci “Nor Cruel and Unusual Punishments Inflicted: The Original Meaning” 839 840. 146 Granucci “Nor Cruel and Unusual Punishments Inflicted: The Original Meaning” 839 842. 147 Weems v United States 217 U.S. 349 (1910).
41
Human dignity provisions and procedural guarantees were codified in the Déclarartion des droits de l’homme et du citoyon of 1789.148
By the twentieth century there were thus several laws which contained a prohibition on cruel and unusual punishments and which sought to protect human dignity. Later in the century, following the atrocities of World War 2, the United Nations was created: one of its goals was to create a new world order. One of the most important early United Nations instruments created was the Universal Declaration of Human Rights.149 This instrument incorporated the values of human dignity and the prohibition on cruel, inhuman or degrading punishment or treatment or torture. The values, as embodied in those clauses, then proliferated into various legal instruments, including bills of rights, and regional and international legal instruments including the Standard Minimum Rules for the Treatment of Prisoners (UNSMR).150 UNSMR was drafted in 1955 by the United Nations Congress on Prevention of Crime and was an effort to reconcile the demands of prisons with the demands of human rights values. It contains 94 principles and is to date the most comprehensive set of principles drafted for the treatment of prisoners in the international human rights arena.151
7. THE SOUTH AFRICAN EXPERIENCE
7.1 THE PRISON IN SUB-SAHARAN AFRICA
Prisons were products of colonization and did not exist in sub-Saharan Africa prior to this area being colonised. Prisons had three main sources, namely coastal forts and garrisons established by colonizing powers in the 16th century, the devices of
148 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 7. 149 Art Five of the Universal Declaration of Human Rights adopted by the United Nations General Assembly A/RES/217, December 10, 1948. 150 UNSMR; Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. 151 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 7.
42 physical constraint and confinement employed during the slave trade and military lock-ups used during the imperial conquest.152
Colonisation had specific needs and imprisonment in Africa was consequently different from imprisonment in Europe. Imprisonment in Africa tended to be arbitrary and short term - but affected a significant proportion of the population. In colonial sub-Saharan Africa the imprisonment ratios were approximately three to six times higher than in the colonizing countries. By the 1950s between one in three hundred and one in six hundred persons were imprisoned compared to one in eleven hundred in Britain.153 The purpose of incarceration in Africa tended not to be the punishment of marginal criminals, but rather part of an intense policy of bringing political, economic and cultural resistance to white domination under control.
The rate of imprisonment in colonial Africa from 1911 to 1938 grew dramatically. As an example of this in Kenya the prison population tripled to 1 in every 146 people. By the late 1920’s the colonial powers had established a regular and hierarchical network of local and central prisons.154 The colonial prison did not strive for reform of the prisoner, nor did it strive to reform itself but was instead a place for the provision of cheap labour for settlers. Forced labour was thus an extension of slavery and also served to consolidate racial inequalities.155
The resulting architecture reflected the poorly funded prisons which were no more than barracks for mass warehousing of labour and their material conditions were dire. There was chronic overcrowding and often a lack of structural separation of native
152 Bernault “The Shadow of Rule: Colonial Power and Modern Punishment in Africa” in Dikötter and Brown (eds) Cultures of Confinement: A History of the Prison in Africa, Asia, and Latin America (2007) 55 56. 153 Bernault “The Shadow of Rule: Colonial Power and Modern Punishment in Africa” in Dikötter and Brown (eds) Cultures of Confinement: A History of the Prison in Africa, Asia, and Latin America 55 63. 154 Bernault “The Shadow of Rule: Colonial Power and Modern Punishment in Africa” in Dikötter and Brown (eds) Cultures of Confinement: A History of the Prison in Africa, Asia, and Latin America 55 65. 155 Bernault “The Shadow of Rule: Colonial Power and Modern Punishment in Africa” in Dikötter and Brown (eds) Cultures of Confinement: A History of the Prison in Africa, Asia, and Latin America 55 69 76.
43 convicts according to gender, age and the nature of the crime.156 These prisons were also marked by violence. Thus, physical violence, even if not expressly permitted by law, was generally tolerated. As a general rule however, physically chastisement was employed for disciplinary reasons and with the hope of reform. This was in strict contrast to the colonizing homeland where the use of violence as a deterrent was being phased out and in its place came the reforming prison which sought to modify the behaviour of the individual through strict discipline and labour.157
Most African prisons can be traced back to colonial times and the building of new prisons and the maintenance of those inherited from the colonial period have often not attracted finances from the state. Consequently the conditions of imprisonment are generally very poor.158
7.2 PRE-COLONIAL EASTERN CAPE
The research has indicated that the trend in certain jurisdictions internationally is towards reductionism. Reductionism is the use of imprisonment as a last resort for punishment and not a first resort. The reasons for this relate to the failure to rehabilitate and the systemic problems such as gangs and overcrowding that are often associated with prisons. These problems are discussed later in this research but they often result in large scale human rights abuses. Abuses of this nature are not consistent with a human rights culture and consequently alternatives are sought to imprisonment. One such alternative is found in the pre-colonial Xhosa culture which provides an alternative to imprisonment as a means of administering punishment.
Typically, the punishment in the Xhosa culture for most crimes including theft, assault, murder and non-consensual sex took the form of transfer of cattle. This act
156 Bernault “The Shadow of Rule: Colonial Power and Modern Punishment in Africa” in Dikötter and Brown (eds) Cultures of Confinement: A History of the Prison in Africa, Asia, and Latin America 55 69. 157 Bernault “The Shadow of Rule: Colonial Power and Modern Punishment in Africa” in Dikötter and Brown (eds) Cultures of Confinement: A History of the Prison in Africa, Asia, and Latin America 55 78 83. 158 Bernault “The Shadow of Rule: Colonial Power and Modern Punishment in Africa” in Dikötter and Brown (eds) Cultures of Confinement: A History of the Prison in Africa, Asia, and Latin America 89.
44 of transfer often accompanied a ritual slaughtering of some of the cattle in order to restore the social order. The number of cattle to be transferred depended on the severity of the offence. Acts such as rape were offences not only against the individual woman but also against the family of the woman. In the case of “blood cases”, i.e. a particular category of offence such as rape, a portion of the cattle were also to go to the chief.
The amount of cattle to be transferred would be a matter to be negotiated either by the families or the families along with the chief. In the absence of a settlement a court composed of a chief or headman and his councillors would hear the case. In the event of guilty verdict the chief would also enforce the payment of compensation. The most severe penalty appears to have been confiscation of all property, with some contributors arguing that death, corporal punishment and exile were also possible. There were three interlinking and interdependent spheres of punishment, i.e. intra-family discipline, inter-family negotiation and chiefs’ courts.159
It was into this environment that the colonizing Europeans intruded and began asserting their own terms of justice. The European legal system imposed the distinction between delicts, personal wrongs to be redressed by payment of compensation, and crimes to be punished by the state,160 including the death penalty.161 Imprisonment, as a form of punishment was also a colonial importation from Europe into Africa, but in South Africa there was a particular emphasis on forced labour that was rented out privately.162 The transition from the traditional form of punishment to that of the colonial was not immediate. There was a long period in which colonial magistrates heard criminal trials, but imposed traditional sanctions.
159 Thornberry “Defining Crime through Punishment: Sexual Assault in the Eastern Cape c.1835– 1900” (2011) Vol 37 No 3 Journal of Southern African Studies. 160 Macdonnell “Zambia National Archive NR G2” in Chanock (ed) Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (1998) 75. 161 House of Commons Parliamentary Papers. Cape of Good Hope. Correspondence with the Governor of the Cape of Good Hope, relative to State of the Kafir Tribes on Eastern Frontier, 50, Sir Harry Smith, 7 January 1848. 162 Bernault “The Shadow of Rule: Colonial Power and Modern Punishment in Africa” in Dikötter and Brown (eds) Cultures of Confinement: A History of the Prison in Africa, Asia, and Latin America 55 65.
45 Thus in many rape cases the accused was ordered, by the magistrate, to pay compensation in cattle.163
7.3 PRE 1910 7.3.1 CAPE
The early Cape Colony mirrored Europe in its approach to punishment. Torture was used to extract confessions and these included thumbscrews, beatings and brandings.164 The punishments were brutal and included, for example, the breaking of limbs, burning at the stake, beheadings, garotting, mutilation and others.165 Another form of punishment was banishing to Robben Island and this was on occasion linked to hard labour.166 Much of the punishment was initially in the form of a public display but this aspect of the punishment was scaled down in the late 1700s.167
There were however limits on the punishments and they were to be administered strictly in terms of the law. Slave owners who had committed crimes against slaves could be prosecuted.168 Eventually the practice was developed by which slave punishment was administered by the local magistrate.169
When the British took over the colony at the Cape in 1796 they sought to put an end to torture as a means of punishment.170 Thus the first time that imprisonment was used as punishment, was on 11 May 1801, during British occupation. An offender, Hendrik Lodewyk, was convicted of receiving stolen property and sentenced to three months’ imprisonment.171
163 Thornberry “Defining Crime through Punishment: Sexual Assault in the Eastern Cape c.1835– 1900” 16 17. 164 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 (1959) 9. 165 Van Zyl Smit South African Prison Law and Practice 7; Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 17. 166 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 29. 167 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 31. 168 Van Zyl Smit South African Prison Law and Practice 7. 169 Ibid. 170 Van Zyl Smit South African Prison Law and Practice 8. 171 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 32.
46 The first gaolers were paid by the prisoners or their friends or family and this constituted a large part of the gaoler’s remuneration. This practice was however outlawed in 1847. Gaolers were often appointed from the ranks of long term prisoners. They were known as “turnkeys” who were very unpopular with fellow prisoners.172
A Government Notice of 24 October 1843 was the first recorded direction to superintendents of prison to rehabilitate prisoners. The mandate provided that it was the task of the superintendents to carry out a process of reformatory discipline, the purpose of which was to protect society from future outrage and injury by the liberated prisoner. They were to eradicate from prisoners those evil and vicious habits which led to crime and in their place establish those of industry and sobriety. They were further to counteract, through moral influence, those motives that had previously led to crime. It was during the early 1800’s, with the concern for reformation, that the first concerns were expressed about the quality of prison guards, with the Superintendent-General of convicts concluding that as a class they were not to be trusted.173
Prisons in the 1800s began to proliferate in South Africa. In 1809 there was only one prison in South Africa and this was at the castle in Cape Town. By 1848 that number had increased to 23 and included prisons in Stellenbosch, Port Elizabeth, Grahamstown, East London, Aliwal North, Graaff-Reinet and Kimberley.174
The number of prisoners began to increase as prison became the primary form of punishment and overcrowding became a serious problem that was mentioned in official letters, annual reports and parliament.175
The number of prisoners increased from 360 to 1710 between the years 1845 to 1866, although these prisons were only capable of housing 171 people. The result was substantial overcrowding with a large number of people crowded into small cells.
172 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 33. 173 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 34. 174 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 38. 175 Van Zyl Smit South African Prison Law and Practice 10; Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 38.
47 For example, in Grahamstown, 20 people were housed in a cell which was twelve square feet.176 Insane convicts were also housed in these institutions.
Prisons were described in Government publications as dirty, dens of filth, stink holes of iniquity, out of repair, in a defective state, in disreputable condition, part of a disgraceful state of things and a disgrace to any civilised community.177 Floors were on occasion made from cow dung while outside walls were propped up by poles. The buildings were often wholly inadequate.178
The cost of transporting prisoners was high and consequently prisoners had to be marched from place to place. The distances which prisoners had to be moved were often relatively far and prisoners would then have to march for many miles and many hours whilst chained. The treatment of prisoners was very poor. For example, one prisoner on Robben Island had one broken leg and the other chained. Usually prisoners were without medicine, food, blankets, pillows or clothing and those who survived only did so by providence.179 Complaints of prisoner neglect persisted.180
There were regularly allegations of great brutality, tyranny and horrors. For example in the Graaff-Reinet prison, prisoners were beaten with a cat-o-nine tails which had wire threaded into it.181 Recidivism, and the failure and consequent disillusion with reform, was a serious problem and in official reports it was noted that prisoners returned to incarceration with mechanical regularity. However there were efforts characteristic of humanitarian impulses to curb ill treatment and injustice.182
Prisoners were not to perform work unless so sentenced. If they were sentenced to labour then this took various forms, but included treading the mill, building roads and working as police and prison guards, apparently tasks that no other people were
176 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 38. 177 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 39. 178 Ibid. 179 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 41. 180 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 42. 181 Ibid. 182 Ibid.
48 prepared to perform.183 There were two groups of road builders, namely, those who worked freely and those who were chained together, the so called “chain gangs”.184 The introduction of the treadmill in the 1820s was for the express purpose of assisting with the supposed rehabilitation of the prisoner.185
A policy shift arose in 1843 under John Montagu. The previous system was described by Sir George Napier as a “positive evil”. This was to be replaced, under John Montagu, by a system whose primary aim and purpose was rehabilitation. This system would be characterized by a strict enforcement of the punishment of imprisonment with labour. It was believed that this would produce reformation in the prisoner and establish habits of self-control, sobriety and active industry. This was combined with a system of incentives which included the payment of a wage, an allowance of privileges in the form of letters and visits, and a reduction of sentence.186 Sir George Napier, Governor of the Cape, was of the view that the penal system proposed by Montagu would curb crime, improve the minds, morals and habits of the prisoners, and the class of persons to whom they belonged. It would in addition open up the resources of the country. In 1846 the Breakwater project in Cape Town commenced using prison labour.187
After the innovations introduced by Montagu, little was done by way of attention to penal policy. Convict labour continued to be employed especially at the breakwater in Cape Town.188
The next major development in South African prisons followed the discovery of diamonds in Kimberley. This introduced the racial division of prisons in South Africa, as well as the mass provision of convict labour for the mining industry. Initially 300 convicts per day were employed in the mines by De Beers, thereby making the government a nett profit. By 1885 De Beers had constructed and managed its own prison and by 1888 was employing 600 convicts per day. The number of convicts
183 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 47. 184 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 48. 185 Van Zyl Smit South African Prison Law and Practice 10. 186 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 44. 187 Van Zyl Smit South African Prison Law and Practice 11. 188 Van Zyl Smit South African Prison Law and Practice 14.
49 being supplied to the mines was gradually increased and many were imported from other territories in order to meet this demand. By 1903 the Government was supplying De Beers with a daily labour force of 11000 convict labourers.189
The labour demand in the mines was substantial and the labour pool that was being drawn upon later included those who had been imprisoned for violating the apartheid pass laws, that is, black men who were found in white areas without being in possession of the requisite “pass” or authority.190 The compound system on the mines, characterized by the contractual prohibition on the miners from leaving the mine property, had similar living conditions to those found in prisons.191
As far as rehabilitation was concerned, prior to Montagu, by 1830 some efforts were being made to teach prisoners basic reading and writing skills and furthermore they were required to adhere to Christian teachings with various rewards being linked to obedience, such as, family visits and access to tobacco.192
In 1887 the Cape Government introduced legislation segregating prisoners.
7.3.2 NATAL
Natal's first prison was a wattle-and-daub structure built by the Voortrekkers in 1847. The first enabling legislation after Britain's annexation of the province was passed in 1862. Little racial segregation occurred and there was little in the way of traditional punishment such as the mill. The conditions were harsh and there was an emphasis on labour because of the demand for it.193 The system in place was a British prison system and therefore followed a similar pattern to the one in the Cape Colony.194
In an effort to deter stock theft in Natal, severe punishment was meted out. Despite these punishments the problem continued unabated. These punishments included
189 Van Zyl Smit South African Prison Law and Practice 15. 190 Ibid. 191 Ibid. 192 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 55. 193 Van Zyl Smit South African Prison Law and Practice 18. 194 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 59.
50 three years’ imprisonment, hard labour, public whipping of 50 lashes once a year and forfeiture of the assets of the offender.195
In an effort to deter offenders in Natal, whipping was used extensively and it became known as the “lashing province”.196
The cost of running prisons was extremely high and amounted to ₤60 000 per annum: this expense was considered to be “prodigal”.197
The first prison built in Durban was in 1864. This prison had ten cells and was gradually expanded to 260 cells by 1907.198 Overcrowding in Natal prisons was chronic as can be demonstrated by reference to the table below:199
Town Capacity of prison Maximum number of prisoners per day
Pietermaritzburg 600 735
Ladysmith 350 615
Stanger 60 179
Greytown 42 237
Mapumulo 42 125
New Hanover 23 67
Weenen 10 51
The conditions in which the prisoners were detained were unhealthy, caused partly by overcrowding and partly by poor infrastructure.200 A 1907 commission of enquiry found that conditions were abominable. The water was not fit for human
195 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 61. 196 Chanock The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice (2007) 104; Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 62. 197 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 63. 198 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 64. 199 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 66. 200 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 67.
51 consumption and there was a fetid atmosphere in the crowded cells: this was further aggravated by the offensive system of open buckets for night use.201
In practice there was no racial classification in the prisons prior to 1910, due largely to the massive overcrowding which occurred.202 Prison labour was seldom used despite the fact that it was available.203 The treadmill and crank as well as the shot drill, i.e. the carrying of a cannon ball, were used in Durban and Pietermartizburg.204 For short term prisoners who could not afford fines open camps were employed from which few escapes occurred.205 Not surprisingly, rehabilitation was seldom achieved.206
7.3.3 THE ORANGE FREE STATE
The first record of a prison in the Free State was in 1861. The prison was in a bad state of repair and was dangerous to enter.207 The familiar themes that trouble prisons such as overcrowding and poor conditions of detention soon emerged. The conditions were so poor that the prisoners’ health began to fail and it was mooted that sick prisoners should be removed from the prisons and placed in private residences.208 The prison was referred to in official communications as the shame of the city of Bloemfontein.209 The women's facility was possibly a little more unsavoury than the men’s facility, as women were required to defecate and urinate in a very small backyard area and cover it with sand.210 The conditions in prisons outside Bloemfotein were apparently worse and were compared with the legendary black hole of Calcutta.211 The new English administration started the process of creating prisons similar to the English model between 1902 until 1910.
201 Ibid. 202 Van Zyl Smit South African Prison Law and Practice 18; Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 68. 203 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 68. 204 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 72 73. 205 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 79. 206 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 76. 207 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 86. 208 Ibid. 209 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 87. 210 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 88. 211 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 89.
52
7.3.4 TRANSVAAL
The judicial inspector of prisons was the local magistrate where the prison was situated.212 The principal prison was the Fort in Johannesburg although there were also districts prisons.213 The conditions in the Johannesburg Prison were regarded as scandalous for a variety of reasons but these included the fact that prisoners of all types were incarcerated together, including those with infectious diseases, youths and the insane. The scant statistics show massive overcrowding and the number of prisoners increased from 738 in 1878 to 28,578 in 1891.214 Although there were certain institutions in which conditions of detention were considered acceptable many were in a state of disrepair.215
Pretoria prison was at first part of the house of the magistrate, but later, in 1858, a ramshackle prison was built by a convicted offender as part of a deal made with the magistrate who sentenced him to one year with hard labour.216 The later prison had gallows which were employed part of a programme of deterrence.217 It was noted even then that prisoners often left prison with a worse character than when they came in.218
In an attempt to solve the problem of massive overcrowding, and similarly, in an attempt to solve labour supply problems, the building of a mine prison was authorized. The ERPM goldmine in Boksburg was built to house 800 prisoners who could be called upon for labour purposes. In Transvaal in the late 1800s only the local Landrost could punish the infringement by prisoners of prison regulations. During this period indeterminate sentences with hard labour for habitual criminals was introduced. The offenders could only be released upon approval by the
212 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 105. 213 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 107. 214 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 109. 215 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 110. 216 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 127. 217 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 128. 218 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 131.
53 Governor on the advice of a board of visitors.219
The so-called number gangs, namely the 26’s, 27’s and 28’s, started in South African prisons in the early 1900s and their activities exacerbated problems such as violence, corruption, male rape and smuggling. Their founder was one Nongoloza, a prisoner in the Transvaal prisons.220
7.4 UNITED SOUTH AFRICA
7.4.1 PRE 1959
On 31 May 1910 South Africa united as a Union. With this came the first South African Prison legislation which repealed either in full, or in part, the legislation governing prisons in the then four provinces. The Prisons and Reformatories Act221 was drafted by Jacob de Villiers Roos. The Act was firmly founded upon the ideal of rehabilitation.222
Roos expressed the view that the essential principles on which the system should be based is that no person, regardless of his age or past record, should be assumed to be incapable of improvement. He believed that it was in the interest of the public, not merely to impose a sentence which is retributive and deterrent in nature, but also that the authorities should make an earnest effort to reform the criminal.223
This was to be achieved by religious and moral instruction, mental quickening, physical development, and work that would best enable the prisoner to gain his livelihood in the future. The goal of rehabilitation, it was believed, was incompatible with short sentences: a long period of reformative treatment would be more likely to be beneficial than repeated short terms of rigorous imprisonment. It was also
219 Van Zyl Smit South African Prison Law and Practice 19. 220 Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013). 221 1911. 222 Van Zyl Smit South African Prison Law and Practice 23. 223 Van Zyl Smit South African Prison Law and Practice 19.
54 believed that reformative treatment should be employed in conjunction with a system of liberation and parole, under a suitable system of guardianship and supervision.224
The prison system under this new dispensation continued to struggle with the problem of prison gangs. Despite the strong rehabilitative belief underlying the new legislation the strict punitive aspects which carried over from the previous colonial dispensation remained. These included whipping, solitary confinement, dietary punishment and additional hard labour. Racial segregation became a strict policy of the prisons during this time.225
An important legal development regarding prisoner rights occurred in 1912 in the matter of Whittaker v Governor of Johannesburg Gaol.226 This was a decision of the full bench of the TPD, which was subsequently confirmed by the Appellate Division.227 The court adopted the principle that prisoners are entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed. This was in contrast to the view that prisoners only possessed such rights as were expressly bestowed on them by the relevant legislation.
Despite the initial enthusiasm for penal reform that had motivated Roos and the legislature, this was not carried through into the practice of prisons and hope for the rehabilitation of criminals was abandoned.228 The demand for labour by mines waned but it was replaced by a need for cheap labour on the farms. A system was introduced by which farmers hired prisoners, but had to both construct private prisons and detain them there. The system had many of the characteristics of slavery and minor offences, such as pass offences, were used as a pretext for holding black prisoners for short durations and then hiring them out at very low wages.229
The conditions of prisons during this period were also very bad and some of the
224 Van Zyl Smit South African Prison Law and Practice 23. 225 Van Zyl Smit South African Prison Law and Practice 24. 226 1911 WLD 139. 227 Whittaker v Roos and Bateman, Morant v Roos and Bateman 1912 AD 92 at 123. 228 Van Zyl Smit South African Prison Law and Practice 26. 229 Ibid.
55 problems included poor quality of guards,230 overcrowding,231 mixing of relatively innocent criminals and hardened criminals,232 high levels of recidivism,233 the infamous number gangs that proliferated and flourished in South African prisons234 and the spread of contagious illnesses such as TB.235
In 1937, with the appointment of General-Major Beyers as head of the prison system, the militarisation of the prison department began. This process of militarization included military-type uniforms, the titles of the staff and the nature of the disciplinary system.236 In 1909 Transvaal legislation provided for the use of an indeterminate prison sentence in order to facilitate the rehabilitation of habitual criminals.237 Provision for the early release of certain sick prisoners on parole was also introduced.238
In 1945 the reform of prisons again came to the fore with the appointment of the Landsdown Commission on Penal and Prison Reform.239 Its progressive suggestions received a poor reception by the National Party which came to power in 1948.240 The Landsdown commission was brought into existence to some extent at the behest of a Penal Reform Committee established by the Institute of Race Relations.241 It sought, as two of its goals, to implement greater use by the courts of remedial and rehabilitative measures in place of imprisonment and the abolition of solitary confinement, corporal punishment and spare diet. Some of the issues identified by prison reformers at the time included the abolition of communal cells and the need for intelligent rehabilitative work.242 The Landsdown Commission found,
230 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 143. 231 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 152. 232 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 154. 233 Ibid. 234 Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013). 235 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 160. 236 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 140. 237 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 147. 238 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 140. 239 Van Zyl Smit South African Prison Law and Practice 26. 240 Van Zyl Smit South African Prison Law and Practice 30. 241 Van Zyl Smit South African Prison Law and Practice 26. 242 Van Zyl Smit South African Prison Law and Practice 27.
56 amongst others, that the conditions in which prisoners were being detained was unsatisfactory and that the hiring out of prison labour should be stopped. The commission also opposed the militarization of prisons since this would diminish the chances of rehabilitation.243
Shortly after the Landsdown report the prison service went on a determined drive to focus on rehabilitation using the latest scientific and penological methods. There were official reports filled with enthusiasm for this new rehabilitative drive and the reports noted the hopes of both officers and prisoners for the rehabilitation of prisoners.244
It is unlikely that this scenario was as idyllic as it was portrayed. This can be seen from the reports of a journalist who reported for Drum magazine245 regarding the treatment of prisoners that he had observed. This included prisoners being beaten with a whip by a farmer who was sitting on a horse whilst the prisoners were made to dance naked before others in the course of being searched.246 This incident led to a clampdown on the publication of information relating to prisoners.247
Prior to the introduction of the Correctional Services Act,248 efforts were underway to separate different categories of prisoner to be incarcerated in different prisons. The means that were proposed to achieve this end were that all prisoners would go to a central prison for a period of observation of 4 – 6 weeks. During this period qualified personnel, including criminologists, psychologists and sociologists would conduct thorough tests on the prisoner, including intelligence quotient tests, personality tests and aptitude tests, in order to form a personality profile of the prisoner that included his social and criminal past. Once this information had been obtained the prisoner would be placed in one of three institutions, namely Pretoria central for hardened criminals, Baviaanspoort prison for first time offenders and Zonderwater and Witbank
243 Van Zyl Smit South African Prison Law and Practice 28. 244 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 191. 245 “Mr Drum Goes to Jail” (1954) March Drum. 246 Van Zyl Smit South African Prison Law and Practice 30. 247 Van Zyl Smit South African Prison Law and Practice 31. 248 8 of 1959.
57 prisons for certain categories of recidivists.249
7.4.2 POST 1959
The Correctional Services Act250 was introduced in 1959 but it was largely motivated by political concerns.251 With the rise of the Nationalist Party and the implementation of their policies the voices of dissidents were usually silenced by means of imprisonment. Attempts to expose conditions in prisons were usually met with prosecutions in terms of section 44 of the Act252 which banned publication of photographs of prison conditions and also made it an offense to publish false information on prisons or prisoners. The onus was on the accused to prove the veracity of any publication.253 The judiciary during this period adopted a pro- executive bias that sought to erode the rights of political detainees. However, the effect of this erosion and demurring to the executive was to erode the rights of all prisoners and not merely those of political prisoners.254
By 1994 conditions in South African prisons were very poor. These included the following problems: serious overcrowding;255 very poor cell conditions, such as twenty people sharing a cell which has a single toilet that is only separated from the primary cell by a small partition and very poor lighting;256 poor quality bedding and food;257 poor medical treatment; HIV/AIDS and tuberculosis infections;258 racial discrimination amongst both prisoners and staff;259 a privilege system, as opposed to a rights based system, where almost anything that a prisoner is allowed to do or have
249 Venter Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 155. 250 8 of 1959. 251 Van Zyl Smit South African Prison Law and Practice 34. 252 Ibid. 253 S 44(f). 254 Van Zyl Smit South African Prison Law and Practice 35. 255 “Prison Conditions In South Africa” (1994) Human Rights Watch
58 is considered privilege;260 authorised measures of punishment which included restraints such as straitjackets, corporal punishment, solitary confinement, dietary punishment and the like;261 regular use of unauthorised measures such as extended dietary punishment; regular assaults by warders upon prisoners;262 prison labour policies which initially were comparable with slavery but gradually changed;263 the operation of prisons under a veil of secrecy;264 idleness and boredom especially among maximum security prisoners;265 corrupt warders;266 failure to rehabilitate offenders;267 children over the age of two generally having no right to visit their mothers;268 mixing of juvenile offenders with adults and subsequent sexual abuse including rape, assault and murder;269 and an arbitrary system of parole.270
7.4.3 POST 1994
The Interim Constitution of South Africa contained a bill of rights that applied to all citizens, including prisoners. This resulted in the need for the introduction of a human rights culture into the correctional system in South Africa. On 21 October 1994 a White Paper on the Policy of the Department of Correctional Services proposed a legislative framework that provided for a correctional system appropriate to a constitutional state, based on the rights of freedom and equality. Following this
260 “Prison Conditions in South Africa” (1994) Human Rights Watch
59 the legislature passed the Correctional Services Act.271
This was accompanied by a transformation of the staff and management structure of the Department of Correctional Services. This led to trade unionism, demilitarisation of the Department of Correctional Services and the introduction of an affirmative action policy.272 Following reports of massive corruption in the Department of Correctional Services the Jali Commission was appointed by the President of South Africa273 in order to investigate corruption in South African prisons. The commission found that there was a complete breakdown of law and order in the Department of Correctional Services and its operations were characterised by large scale corruption and violence.
Following this a further White Paper on Corrections in South Africa was published in 2005 which placed rehabilitation at the very forefront of the purpose of imprisonment.274 This led to an extensive amendment of the 1998 Act275 that changed, amongst others, the terminology that was employed: for example, prisoners became ‘inmates’, prisons became ‘correctional centres’ and so forth. These amendments made it clear that rehabilitation was the most important purpose of imprisonment.
The reality of how prisons currently operate and the conditions in which prisoners live will be explored more fully in the section dealing with systemic issues.
8. CONCLUSION
A few general observations have been made by historians of imprisonment. Firstly, prison authorities tend to go through phases of being enamoured with the prospect of
271 111 of 1998. 272 Jali Report 46 -51. 273 Commission of Inquiry Into Alleged Incidents of Corruption, Maladministration, Violence or Intimidation Into The Department of Correctional Services Appointed By Order of The President of The Republic of South Africa In Terms of Proclamation No. 135 Of 2001, As Amended. 274 White Paper on Corrections in South Africa (2005) 39. 275 Act No 25 of 2008.
60 rehabilitation of prisoners and then to despair of the possibility.276 Secondly, there are various humanitarian ideals that often act as an impetus for reforms resulting in forms of punishment that are grossly disproportionate to the crimes committed by the prisoners.277 Thirdly prisons, by their nature, in modern times tend still to be characterized by poor hygiene, poor health care, guard brutality, enforced idleness, lack of rehabilitation programmes, a concentration and spread of communicable diseases, disorder, the failure to reform offenders, criminogenesis, gangs, aging infrastructure, architecture designed around a punitive philosophy and overcrowding.278 Prisons as a social institution which seek to rehabilitate the prisoner have generally been regarded as a failure.279 Foucault argues that the criminal justice system is a mutually reinforcing system that transforms offenders into delinquents. It does this by labeling and stigmatizing offenders.280
The underlying purpose of imprisonment from its inception was the reform of the offender, from “criminal” to “law abiding citizen”. However, despite this humanitarian impulse that supported the creation of prisons, they have generally failed to realize those goals. Van Zyl Smit raises the question as to whether it is possible for a prison to ever become anything other than a total institution281, that is, whether it can become an institution compatible with human rights’ values. His concern is twofold: firstly, there is a significant imbalance of power that exists between prisoners and staff282 and secondly, prison is an arbitrary institution as opposed to a legal institution. A legal prison institution would be a prison system characterized by the following: coherent norms which are goal-oriented and serve to protect prisoners; legal constraints on the prison authorities; a system of rights as opposed to privileges; an appeal and complaints system and a system which seeks to redress
276 Mc Conville “The Victorian Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society (1998) 115 145. 277 Mc Conville “The Victorian Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 115 148. 278 Rothman “Perfecting the Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 100 112. 279 Garland Punishment and Modern Society A Study in Social Theory 232. 280 Foucault Discipline and Punish, the Birth of the Prison 282. 281 Total institutions are discussed in the section dealing with systemic issues. 282 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 350.
61 the imbalance of power between prisoners and prison staff.283
In this section the English, American, South African and European experiences with imprisonment systems have been surveyed. The history of prisons was traced from their early manifestations until the 20th century. The emergence of the prison as the dominant form of punishment in England and Europe during the enlightenment period was outlined. The manner in which imprisonment displaced the violent and brutal punishments that had preceded it was discussed.284
The origin of the modern prison was traced. It was ascertained that imprisonment as the usual form of punishment for crime is a relatively modern phenomenon in human culture. Furthermore, it was pointed out that this had its origins in the concept of a humane form of punishment, as opposed to the so called “blood sanctions” of Europe.
The pre-colonial position regarding punishment in South Africa was also considered, since imprisonment was a form of punishment introduced during the process of colonization and is therefore a relatively modern phenomenon.
The problems that were found to have characterized prisons included: the want of food, air, space, bedding, classification and moral discipline, together with the presence of corrupt guards, overcrowding, disease and a failure to reform the prisoner.
Furthermore, the development of the concept of the prohibition of cruel, inhuman or degrading treatment or punishment was studied. The development of this standard was found to have created a significant tension between human rights law on the one hand and conditions of imprisonment on the other. This tension then gave rise to certain guidelines on the treatment of prisoners.
One of the consequences of the tension between the nature of the treatment of
283 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 351. 284 Van Zyl Smit South African Prison Law and Practice 3.
62 imprisoned offenders and human rights law was an effort to find alternatives to imprisonment. One alternative is the European response of reductionism. No specifically African responses have yet been formulated. The Xhosa model referred to above will be employed later in this research as one basis for an alternative response to the failures of imprisonment.
The international norms that emerged in the twentieth century following the rise of human rights law will be considered next.
63 CHAPTER 3 INTERNATIONAL AND COMPARATIVE PRISON LAW
1. Introduction ...... 65 2. International law ...... 66 2.1 Prisoners shall not be tortured nor shall they be punished or imprisoned in conditions that are cruel, inhuman or degrading ...... 68 2.1.1 International standards: cruel, inhuman or degrading punishment or treatment ...... 68 2.1.2 Imprisonment in conditions that respect human dignity ...... 71 2.1.2.1 Accommodation ...... 71 2.1.2.2 Clothing and bedding ...... 72 2.1.2.3 Exercise and recreation ...... 73 2.1.2.4 Food ...... 73 2.1.2.5 Health care...... 73 2.1.2.6 Access to legal advice ...... 75 2.1.2.7 Religion and belief ...... 75 2.1.2.8 Contact with community and access to prisons ...... 75 2.1.2.9 Work ...... 76 2.2 All prisoners shall be detained in a safe environment in which good order prevails .. 77 2.2.1 Duty of care ...... 77 2.2.2 Discipline ...... 77 2.2.3 Searches ...... 79 2.2.4 Categorisation ...... 80 2.2.5 Use of force ...... 81 2.2.6 Instruments of restraint ...... 83 2.3 The prohibition on torture or cruel, inhuman or degrading treatment or punishment is an absolute prohibition to which the insufficient material resources of the state are not relevant ...... 83 2.4 The rights of prisoners apply to all prisoners ...... 84 2.5 Primacy of the prisoner’s rights ...... 84 2.6 Life in prison shall resemble the positive aspects of life in the community...... 87 2.7 Imprisonment shall be designed to rehabilitate and socially re-integrate prisoners ... 87 2.8 Prison staff shall be recruited and trained to properly discharge their duty to care for prisoners and act with integrity ...... 89 2.9 Imprisonment is a punishment in and of itself and therefore conditions of imprisonment shall not aggravate the suffering inherent in imprisonment ...... 90 2.10 Restrictions placed on prisoners shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed ...... 91 2.11 A prisoner retains all those rights which have not been taken away by law and which are not necessarily inconsistent with the circumstances in which he has been placed ...... 92 2.12 Prisoners’ avenues of protection, redress and remedies ...... 93 2.12.1 Prisons shall be as open and transparent as possible ...... 93 2.12.2 Complaints and requests ...... 93 2.12.3 Inspectorate ...... 93 2.12.4 Right of recourse to court ...... 94 3. Comparative law ...... 94 3.1 Limitation of rights ...... 98 3.2 Prohibition on cruel, inhuman or degrading treatment or punishment ...... 101 3.2.1 Duty of care ...... 103 3.2.1.1 Brutality by fellow prisoners ...... 103 3.2.1.2 Assault by staff ...... 112 3.2.1.3 Failure to train staff ...... 114 3.2.2 Conditions of detention ...... 116 3.2.2.1 Overcrowding ...... 116 3.2.2.2 Failure to provide rehabilitative programmes ...... 127
64 3.2.2.3 Cell conditions ...... 129 3.2.2.4 Contact with the community and access to prisons ...... 138 3.3 Health and mental health ...... 141 3.3.1 General ...... 141 3.3.2 Forced medication and forced feeding ...... 144 3.4 Good order ...... 145 3.4.1 Searches ...... 145 3.4.1.1 General ...... 145 3.4.1.2 Cross gender searches ...... 146 3.4.1.3 Strip searches and invasive searches ...... 146 3.4.2 Disciplinary process ...... 148 3.4.2.1 Hearings and due process ...... 148 3.4.2.2 Solitary confinement ...... 151 3.5 Defence of insufficient resources ...... 152 3.6 Remedies ...... 153 3.6.1 Access to court ...... 153 3.6.2 Legal remedies ...... 153 4. Conclusion ...... 155
1. INTRODUCTION
The South African Constitution provides that when a court is interpreting the Bill of Rights it must promote the values that underlie an open and democratic society based on human dignity, equality and freedom and it must also consider international law and, optionally, foreign law.285
As discussed in the history section,286 efforts to create a new world order following World War II led to the creation of the UDHR which incorporated the values of human dignity and the prohibition on cruel, inhuman or degrading punishment or treatment or torture. The values, as embodied in those clauses, then proliferated into various legal instruments including bills of rights, regional and international legal instruments including the UNSMR (Standard Minimum Rules for the Treatment of Prisoners). The UNSMR was drafted in 1955 by the United Nations Congress on Prevention of Crime and was an attempt to reconcile the demands of prisons with the values of human rights. Certain of these principles were then adopted into various regional instruments as well as national legislation.
285 S 39. 286 See s 5 of the History of Prisons section entitled No Cruel or Unusual Punishments.
65 For the purposes of this study, it is necessary to consider the several broad principles of general application that have been identified as important to prisoner rights in an international human rights context.
Two jurisdictions will be considered in which prison law is highly developed, namely, the United States of America and Europe. In the United States of America prison law developed relatively quickly since the 1960’s287 and in Europe from the mid- 1970’s.288 These jurisdictions are important since there is extensive prisoner rights litigation within a human rights framework and therefore they provide useful guidelines for South African law. Furthermore, where possible, African jurisprudence will be considered since South Africa seeks to integrate African values into its traditionally eurocentric legal system.289
Furthermore, it has been held by the American Courts that if the government is going to operate a prison system, then it must do so according to the terms of the constitution. 290 It is submitted that this is also the South African legal position.
2. INTERNATIONAL LAW
In this section twelve broad and important principles will be discussed.
The first of these is that prisoners shall not be tortured nor shall they be punished in a manner that is cruel, inhuman or degrading nor shall they be imprisoned in such conditions. This principle will be discussed in the context of other human rights instruments as well as the implications of this principle insofar as imprisonment in conditions that respect human dignity are concerned, including accommodation, clothing and bedding, exercise and recreation, food, health care, access to legal advice, religion and belief, contact with community, access to prisons and work.
287 Van Zyl Smit South African Prison Law and Practice 59. 288 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 10. 289 Vida infra the discussion on Ubuntu in s 5 in the South African Common Law of Prisoner Rights. 290 Holt v Sarver 309 F. Supp., 362, 385 (E.D. Ark., 1970).
66 The second of these is that all prisoners shall be detained in a safe environment in which good order prevails. This obligation includes a general duty of care, discipline, searches, proper categorization, appropriate use of force and appropriate use of instruments of restraint.
The third principle is that the prohibition on torture and cruel, inhuman or degrading treatment or punishment is an absolute prohibition to which the insufficient material resources of the state are not relevant.
The fourth principle states that all persons are equal before the law and have the right to equal protection and benefit of the law and the principles protecting prisoners under international prison law are to be applied to all prisoners impartially.
The fifth principle requires that once the prisoner is securely incarcerated, his rights, including the balancing of the competing rights of other prisoners in order to maximize the exercise of those rights, are the prime consideration of the prison authorities.
The sixth principle embodies the concept that life in prison shall resemble the positive aspects of life in the community.
The seventh principle requires that imprisonment shall be designed to rehabilitate and socially re-integrate prisoners.
The eighth principle is that prison staff shall be recruited and trained to properly discharge their duty to care for prisoners and act with integrity
The ninth principle requires that the conditions of imprisonment shall not aggravate the suffering inherent in imprisonment on the grounds that imprisonment is a punishment in and of itself.
The restrictions placed on prisoners shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. This is the tenth principle.
67
A prisoner retains all those rights which have not been taken away by law and which are not necessarily inconsistent with the circumstances in which he has been placed. This is the eleventh principle.
The final principle to be discussed is the prisoners’ avenues of protection, redress and remedies. The first avenue of protection is that the prisons shall be as open and transparent as possible. This principle facilitates external monitoring of prison conditions. There should also be systems for the processing of prisoner complaints and requests, the existence of an independent judicial inspectorate and finally a right of recourse to a court that can adjudicate in a dispute concerning prisoner rights.
2.1 PRISONERS SHALL NOT BE TORTURED NOR SHALL THEY BE PUNISHED OR IMPRISONED IN CONDITIONS THAT ARE CRUEL, INHUMAN OR DEGRADING
2.1.1 INTERNATIONAL STANDARDS: CRUEL, INHUMAN OR DEGRADING PUNISHMENT OR TREATMENT
291 Article 5 of the Universal Declaration of Human Rights (UDHR) provides that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. This standard found expression in 1955 in the Standard Minimum Rules for the Treatment of Prisoners (UNSMR) that was approved by the First United Nations Congress on the Prevention of Crime.292 This standard also appears in Article 7 of the International Covenant on Civil and Political Rights (ICCPR)293 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),294 the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment295 (OPCAT), Code of Conduct for Law Enforcement Officials,296 Principles of Medical Ethics relevant to the
291 GA Res 217A (III), 10 December 1948, 3 UN GAOR Supp (No. 11A) 71, UN Doc A/810. 292 UN Doc A/Conf/611, annex I. 1957 endorsement by the United Nations Economic and Social Council: ESC Res 663 C (XXIV), 31 July 1957, 24 UN ESSCOR Supp (No1) 11, UN Doc E/3048 (1957) and 2076 (LXII) (1957). 293 GA Res 2200A (XXI) of 16 December 1966, 21 UN GOAR Supp (No 16) 52, UN Doc A/6316 (1966). 294 GA Res 39/46 of 10 December 1984, 39 UN GAOR Supp (No 51) 197, UN Doc A/39/51 (1984). 295 GA/RES/57/199 of 18 December 2002. 296 GA Res 34/169 of 17 December 1979.
68 Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,297 the Inter-American Convention to Prevent and Punish Torture,298 the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines),299 the Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment,300 the African (Banjul) Charter on Human And Peoples' Rights301 and the European Convention on Human Rights.
South Africa signed the ICCPR on 3 October 1994 and ratified it on 10 December 1998. In addition it has signed and ratified CAT.
Torture is defined in the instrument as an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.302
Torture and cruel, inhuman or degrading treatment or punishment are outlawed.303
Cruel, inhuman or degrading treatment or punishment is not defined in the same manner as torture, but a guideline304 is provided for the care of prisoners. The
297 GA Res 37/194 of 18 December 1982. 298 Adopted by Organization of American States on 9 December 1985. 299 Adopted by the African Commission on Human and Peoples’ Rights at its thirty-second ordinary session, 17-23 October 2002. 300 GA 43/173 of 9 December 1988. 301 Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986, Art 5. 302 Art 1 CAT. 303 Art 7 ICCPCR. 304 Art 10(1).
69 guideline provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Furthermore, the essential aim of the prison system, and the manner in which prisoners are treated, shall be for their reformation and social rehabilitation.305
This provides support for the argument that will be put forward later that rehabilitation and social reintegration are values at the core of the South African correctional system.306
Further definition is given to this right by providing that cruel, inhuman or degrading treatment or punishment should be interpreted so as to include the widest possible protection against abuse, whether physical or mental, including the holding of an imprisoned person in conditions which deprive him, temporarily or permanently of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time.307
In South Africa308 and elsewhere in Africa,309 the terms cruel, inhuman or degrading treatment or punishment are interpreted widely and disjunctively. In other words, the following are outlawed: cruel, inhuman and degrading treatment and cruel, inhuman and degrading punishment. The disjunctive interpretation of the clauses is also applied in Europe.310
The distinction between punishment and treatment is an important distinction in the legal system of the United States of America.311
305 Art 10(3). 306 S 2(c) of the Correctional Services Act 111 of 1998 as read with the preamble. 307 General clause Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. 308 S v Niemand 2001 (11) BCLR 1181 (CC); S v Williams supra. 309 Namunjepo and Others Commanding Officer, Windhoek Prison and Another 2000 (6) BCLR 671 (NmS). 310 Grand Chamber judgment Ilascu and Others v Moldova & Russia 08.07.04 http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx#{"display":["1"],"dmdocnumber": ["800708"]} (accessed 21-03-2013) Grand Chamber judgment Ramirez Sanchez v. France 04.07.06
70 The next aspect to be considered are the guidelines for safe custody. These guidelines set out the conditions of detention in which prisoners are to be kept. Where these guidelines are not adhered to by the prison authorities, depending upon the extent of the deviation, the conditions of detention may violate the prohibition that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
The ICCPR312 requires that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment and, more particularly, that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person and that prisons shall provide for the treatment of prisoners with the aim of reforming and re-integrating them into society. The broad guidelines for achieving that end313 are contained in the UNSMR and are set out below.
2.1.2 IMPRISONMENT IN CONDITIONS THAT RESPECT HUMAN DIGNITY
2.1.2.1 ACCOMMODATION
Prisoners shall be detained, insofar as possible, in prisons close to their homes or family.314
Where sleeping accommodation is in individual cells or rooms, each prisoner shall occupy by night a cell or room by himself. An exception is made for temporary overcrowding but it remains undesirable for two persons to share a cell.315
Where sleeping accommodation is in dormitories, they shall be occupied by prisoners carefully selected as being suitable to associate with one another in these conditions and there shall be regular supervision by night.316
312 Art 7 and 10. 313 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 6. 314 Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison (EPR) Rule17. 315 UNSMR Art 9(1) EPR Rule18(5); Germany, Prison Act s 18. 316 UNSMR Art 9(2) EPR Rule18(6).
71
All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.317
In all places where prisoners are required to live or work, the windows shall be large enough to enable prisoners to read or work by natural light, and shall be so constructed that they allow the entrance of fresh air, whether or not there is artificial ventilation. Where artificial light is necessary, it shall be provided and be sufficient for prisoners to read or work without injury to eyesight.318
The sanitary installations shall be adequate to enable every prisoner to comply with the calls of nature when necessary and in a clean and decent manner. Adequate bathing and shower installations shall be provided so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate, as frequently as necessary for general hygiene, according to season and geographical region, but at least once a week in a temperate climate.319
2.1.2.2 CLOTHING AND BEDDING
A prisoner who is not permitted to wear his own clothing shall be provided with clothing that is suitable for the climate and adequate to keep him in good health. The clothing shall in no manner be degrading or humiliating.320
317 UNSMR Art 10; EPR Rule 18; Malawi, Prisons Bill s 7; Malawi, Prisons Regulations s 3; Canada, Corrections and Conditional Release Act s 70; Canada, Corrections and Conditional Release Regulations s 70; United Kingdom, Prison Act 1952 s 14; Germany, Prison Act ss 144, 145 and 146; South Africa, Correctional Services Act s 7; South Africa, Correctional Services Regulations s 3. 318 UNSMR Art 11; Malawi, Prisons Bill s 7; Malawi, Prisons Regulations s 3; Canada, Corrections and Conditional Release Act s 70; Canada, Corrections and Conditional Release Regulations s 70; United Kingdom, Prison Act 1952 s 14; South Africa, Correctional Services Act s 7; South Africa, Correctional Services Regulations s 3. 319 UNSMR Art 12 and Art 13; Malawi, Prisons Bill s 7; Malawi, Prisons Regulations s 3; Canada, Corrections and Conditional Release Act s 70; Canada, Corrections and Conditional Release Regulations s 70; United Kingdom, Prison Act 1952 s 14. 320 UNSMR 17; EPR Rule 20; South Africa, Correctional Services Act s 10; South Africa, Correctional Services Regulation s 5; Malawi, Prisons Bill s 12; Germany, Prison Act s 20 and s 132.
72
Every prisoner must be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued and kept clean.321
2.1.2.3 EXERCISE AND RECREATION
A prisoner who is not employed in outdoor work shall have at least one hour of exercise in the open air daily.322
Recreational and cultural activities shall be provided in all institutions for the benefit of the mental and physical health of prisoners.323
2.1.2.4 FOOD
Prisoners shall be provided with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served at regular intervals. Drinking water shall be available to every prisoner whenever he requires it.324
2.1.2.5 HEALTH CARE
Prisoners have the right to adequate health care and access to health services regardless of legal status.325
321 UNSMR 19; EPR Rule 21; South Africa, Correctional Services Act s 10; South Africa, Correctional Services Regulations s 5; Malawi, Prisons Bill s 12. 322 UNSMR Art 21; EPR Rule 25 and Rule 27; South Africa, Correctional Services Act s 11; South Africa, Correctional Services Regulations s 6; Malawi, Prisons Bill s 10; Canada, Corrections and Conditional Release Regulation s 83; Netherlands, Penitentiary Principles Act Art 48 and Art 49; Germany, Prison Act s 64. 323 UNSMR Art 78; EPR Rule 25 and Rule 27; South Africa, Correctional Services Act s 10; South Africa, Correctional Services Regulations s 11; Germany, Prison Act s 67 and s 69. 324 UNSMR Art 20; EPR Rule 22; South Africa, Correctional Services Act s 8; South Africa, Correctional Services Regulations s 4; Germany, Prison Act s 21. 325 Universal Declaration of Human Rights Art 25; Basic Principles for the Treatment of Prisoners Art 9; EPR Rule 39; South Africa, Correctional Services Act s 12; South Africa, Correctional Services Regulations s 7; Canada, Corrections and Conditional Release Act s 86; South African Constitution s 35.
73 Prisoners have a right to adequate medical care, both physical and mental, at the very least and in some instances greater than, the quality and standards of those available to those who are not imprisoned.326
Every prison shall have the services of at least one qualified medical officer who should have some knowledge of psychiatry. The medical services should include a psychiatric service for the diagnosis and treatment of states of mental abnormality.327
As soon as possible after a prisoner’s admission and whenever necessary thereafter, the medical officer shall see and examine every prisoner in order to discover any physical or mental illness and to take the necessary measures including, but not limited to the segregation of prisoners suspected of infectious or contagious conditions and the prisoner’s capacity for work.328
The medical officer shall regularly inspect and advise the director upon the conditions of detention. The director shall take into consideration the reports and advice of the medical officer and, providing he agrees with those reports, shall take immediate steps to give effect to those recommendations.329
Any physical or mental illnesses or defects which may hamper a prisoner's rehabilitation are to be detected and treated.330
Insane persons shall not be detained in prisons and shall be moved to mental institutions as soon as possible.331
326 Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Principle 1; Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Code of Conduct for Law Enforcement Officials Art 6; EPR Rule 40; South Africa, Correctional Services Regulations s 7. 327 UNSMR Art 22; EPR Rule 40. 328 UNSMR Art 24 and Art 25; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Principle 24; EPR Rule 42. 329 UNSMR Art 26; South Africa, Correctional Services Regulations s 7. 330 UNSMR Art 62 EPR Rule 44. 331 UNSMR Art 82; EPR Rule 46.
74 2.1.2.6 ACCESS TO LEGAL ADVICE
A prisoner shall be entitled to communicate and consult with legal counsel and adequate time and facilities shall be provided for this. Such a consultation shall be without delay or censorship and in full confidentiality. This may be within sight but not hearing of prison officials.332
2.1.2.7 RELIGION AND BELIEF
Every prisoner’s freedom of thought, conscience and religion shall be respected and prisoners shall be permitted to practice their religion and follow their beliefs.333 No one shall be discriminated against on the basis of their religion.334
Where possible all prisoners shall be permitted to satisfy the needs of their religious life by practicing their religion and following their beliefs, including the attendance at services, keeping religious books and receiving private visits from the representatives of their religion.335
2.1.2.8 CONTACT WITH COMMUNITY AND ACCESS TO PRISONS
An important goal of imprisonment is rehabilitation and social re-integration of the prisoner. For this to be possible it is necessary that prisoners should, subject to reasonable conditions and restrictions as specified by law, maintain the closest
332 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Principle 18; Basic Principles on the Role of Lawyers Principle 1 and Principle 8; EPR Rule 23; South Africa, Correctional Services Act s 17; South Africa, Correctional Services Regulations s 12; Malawi, Prisons Bill s 16; Germany, Prison Act s 26 and s 27; Canada, Corrections and Conditional Release Regulations s 97. 333 International Covenant on Civil and Political Rights Art 27; UNSMR Art 42; EPR Rule 29; South Africa, Correctional Services Regulations s 14; Canada, Corrections and Conditional Release Act s 75; Canada, Corrections and Conditional Release Regulations s 100 and s 101; Netherlands, Penitentiary Principles Act Art 41; Germany, Prison Act s 53, s 54 and s 55. 334 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Art 5; Canada, Corrections and Conditional Release Act s 75; South African Constitution s 9. 335 UNSMR Art 42; EPR Rule 29(1); South Africa, Correctional Services Act s 14(3); Canada, Corrections and Conditional Release Regulations s 101; Peru, Penitentiary Code 1991 Art 94; Netherlands, Penitentiary Principles Act Art 41(3); Germany, Prison Act s 53.
75 possible contact with the outside community and the prisoners’ continued role in the community should be emphasized.336
This would include communication and contact with the family,337 as the fundamental group unit of society,338 and with reputable friends at regular intervals, both by correspondence and by receiving visits. The relationships with family must be maintained and, where possible, improved. This could possibly include conjugal visits and compassionate leave. Social agencies can play a valuable role in this regard.339
It also includes being kept informed regularly of the more important items of news by the reading of newspapers, periodicals or special institutional publications.
2.1.2.9 WORK
Sentenced prisoners shall be required to work, subject to their physical and mental fitness, provided that the work is not afflictive.340 Sufficient work of a useful nature should be provided to keep prisoners actively employed during a normal working day.341 The purpose of the work shall include an increase in the prisoner’s skills and earning capacity by way of vocational and skills training.342 In accordance with the principle that the prison shall resemble ordinary society as closely as possible, the conditions of work shall be similar to work provided outside the institution,343 and accordingly it shall be subject to the relevant labour laws.344 The work shall be
336 UNSMR Art 61; Canada, Corrections and Conditional Release Regulations s 90; Germany, Prison Act s 23 and s 24. 337 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Art 19 and Art 20; UNSMR Art 37; EPR Rule 24 ; South Africa, Correctional Services Act s 13; South Africa, Correctional Services Regulations s 8; Malawi, Prison Bill s 14; Canada, Corrections and Conditional Release Act s 71; Peru, Penitentiary Code 1991 Art 58. 338 Universal Declaration of Human Rights Art 12; International Covenant on Civil and Political Rights Art 17 and Art 23. 339 UNSMR Art 79 and Art 80; EPR Rule 24; Malawi, Prison Bill s 14; Netherlands, Penitentiary Principles Act Art 36, Art 38 and Art 48. 340 International Covenant on Civil and Political Rights Art 8, UNSMR Art 71(1). 341 EPR Rule 26(2); South Africa, Correctional Services Act s 13; Malawi, Prisons Bill s 41; Netherlands, Penitentiary Principles Act Art 47; Germany, Prison Act s 41. 342 UNSMR Art 71(4); EPR Rule 26(3). 343 EPR Rule 26(7). 344 UNSMR Art 75; EPR Rule 26(13); South Africa, Correctional Services Regulations s 12.
76 structured so as to facilitate the rehabilitation and social re-integration of the prisoner.345 The prisoner’s earnings shall be retained by him for his own purposes and for the purpose of maintaining his family.346
2.2 ALL PRISONERS SHALL BE DETAINED IN A SAFE ENVIRONMENT IN WHICH GOOD ORDER PREVAILS
2.2.1 DUTY OF CARE
The prisoner is owed a duty of care by the state when it deprives him of his liberty.347 The foremost aspect of that duty of care is to ensure the safety of the prisoner and a further aspect of that duty is to safeguard the welfare of the prisoner.348
Prison authorities shall create environments in which all prisoners can be safe and free from abuse and where all prisoners are able to mix without fear of assault or other violence, whether from staff or other prisoners349 and where the physical environment is safe.350
2.2.2 DISCIPLINE
The disciplinary and grievance procedures in prison are created in order to maintain or restore order and safety in the prison.351
345 UNSMR Art 72; EPR Rule 105(1); Germany, Prison Act s 37. 346 EPR Rule 26(12). 347 UN Human Rights Committee General Comment 21 Art 3. 348 Prison Reform International Making Standards Work: An International Handbook On Good Prison Practice 2nd ed (2001) 5; UNSMR Art 27; Universal Declaration of Human Rights Art 3; International Covenant on Civil and Political Rights Art 9(1); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Art 1; South African Constitution s 11 and s 12; South Africa, Correctional Services Act s 2(b). 349 Premininy v Russia (Application no. 44973/04) (2011)
77
Discipline and order shall be maintained in a manner that ensures safe custody and a well-ordered community life, but with no more restrictions than are necessary.352
On admission to prison, prisoners shall be advised of the acts or omissions that constitute disciplinary offences, the procedures to be followed at disciplinary hearings, the types and duration of punishment that may be imposed, the authority competent to impose such punishment and the appeal process.353 These shall be prescribed by law.354
If a prisoner is charged with a disciplinary offence, he shall be informed promptly,355 in a language that he understands and in detail, the nature of the accusations against him.356 He shall be allowed adequate time and facilities for the preparation of his defence357 and shall be allowed to defend himself in person358 or through legal or other assistance when this is in the interests of justice.359
The prisoner shall be permitted to secure the attendance of witnesses and to examine them.360 The prisoner shall also have free assistance of an interpreter if this is required in the interests of justice.361
Any punishment imposed after conviction of a disciplinary offence shall be in proportion to the offence,362 but torture363 or cruel, inhuman and degrading
352 UNSMR Art 27. 353 UNSMR Art 35; International Covenant on Civil and Political Rights Art 2; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Principle 30; African Charter on Human and Peoples' Rights Art 7. 354 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Principle 30; ERP Art 57; South Africa, Correctional Services Act s 23; Canada, Corrections And Conditional Release Act s 40 and s 44. 355 ERP Art 58; Canada, Corrections and Conditional Release Act s 42; Peru, Penitentiary Code 1991 Art 34. 356 UNSMR Art 29(2); ERP Art 59; Wolff v McDonnell supra. 357 South Africa, Correctional Services Act s 24; Canada, Corrections and Conditional Release Act s 43. 358 Germany, Prison Act s 106. 359 South Africa, Correctional Services Act s 24(7). 360 South Africa, Correctional Services Regulation s 14. 361 UNSMR Art 29(3). 362 ERP Art 60.
78 punishments364 such as corporal punishment, placement in a dark cell, total prohibition on family contact, the use of mechanical restraints, a spare diet365 shall not be imposed and solitary confinement shall not be imposed except in exceptional circumstances366 and for as short a period as possible.
A prisoner who has been convicted of an offence shall have the right of appeal to a higher authority,367 not to be tried twice for the same offence and not to be punished 368 twice for the same offence. No prisoner is permitted to be involved in the implementation of any disciplinary measures.369
2.2.3 SEARCHES
Prisoners, their places of living, working or congregation and their possessions may be searched for the purpose of detecting and preventing any attempt to escape or to hide contraband.370
Searches are to be carried out by trained staff of the same sex as the prisoner.371 The prisoner who is being searched shall have his dignity preserved. Searches may include non-intrusive searches, routine or non-routine, visual inspection of the naked
363 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Art 2. 364 Universal Declaration of Human Rights Art 5, International Covenant on Civil and Political Rights Art 7 and Art 10; Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment Art 16; African Charter on Human and Peoples' Rights Art 5; Canada, Corrections And Conditional Release Act s 69. 365 UNSMR Art 31 and Art 32. 366 Basic Principles for the Treatment of Prisoners Article 7; South Africa, Correctional Services Act s 24(5). 367 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Principle 30(2); UNSMR Art 29; South Africa, Correctional Services Act s 24(7). 368 EPR Rule 63. 369 South Africa, Correctional Services Act s 22(4); Peru, Penitentiary Code 1991 Art 35; UNSMR Art 28. 370 Malawi, Prisons Bill s 22(2); Canada, Corrections and Conditional Release Act s 49; Colombia, Penitentiary Code Art 55; Netherlands, Penitentiary Principles Act Art 29; Germany, Prison Act s 84; EPR Rule 54. 371 South Africa, Correctional Services Regulations s 16; Canada, Corrections and Conditional Release Act s 48.
79 body, physical probing of any bodily orifice,372 taking samples of a body tissue or body excretion for analysis and the use of an X-ray machine.373
Searches of prisoners must be limited to what is reasonably required for security purposes. The method that least invades the privacy and least undermines the dignity of the prisoner shall be employed and once the bodily integrity of the prisoner is invaded, the search must be administered by an appropriately qualified medical professional.374
2.2.4 CATEGORISATION
Different categories of prisoners shall be kept separately taking account of their sex, age, criminal record, the crime for which they were convicted and the necessities of their treatment.375 Therefore men and women prisoners, convicted and awaiting trial prisoners, young and old prisoners and different risk profile prisoners shall all be kept separately.376
Individual treatment of prisoners is desirable and for this purpose it is necessary to have a flexible system of classifying prisoners into groups so that they may be distributed in a manner suitable for the treatment of each group.377
The degree of security provided for each group shall vary according to the security needs of the particular group.378 The level of security applied to an individual prisoner shall be the minimum necessary to achieve his secure custody.379 The lower the level of security, the greater the prison reflects life outside the prison and
372 Canada, Corrections and Conditional Release Act s 52; Netherlands, Penitentiary Principles Act Art 31. 373 South Africa, Correctional Services Act s 27(2); Canada, Corrections and Conditional Release Act s 50. 374 South Africa, Correctional Services Act s 27(3); Malawi, Prisons Bill s 22(3); EPR Rule 54(7). 375 UNSMR Art 8; EPR Rule 18(8); South Africa, Correctional Services Regulations 22; Malawi, Prison Bill s 40; Canada, Corrections and Conditional Release Act s 30. 376 Germany, Prison Act s 140. 377 UNSMR Art 63(1); EPR Rule 51. 378 UNSMR Art 63(2); South Africa, Correctional Services Act s 42. 379 EPR Rule 18(8).
80 the more conducive it is to rehabilitation and re-integration.380 The level of physical and technical security shall be complemented by the dynamic security of the prison staff who know the prisoners under their control.381
The level of crowding in a prison shall not be so large so as hinder individualized treatment.382
The purposes of classification shall be to separate those prisoners who, by reason of their criminal records or bad characters, are likely to exercise a malign influence over other prisoners. The purpose of this classification is in order to facilitate the rehabilitation and social re-integration of the prisoners.383
As soon as possible after admission to the prison, each prisoner shall be assessed and a suitable treatment regime shall be prepared for him in order to facilitate his rehabilitation and social re-integration.384
2.2.5 USE OF FORCE
Prisons are closed communities in which abuse of authority by staff or prisoners can easily occur. There has therefore to be a specific set of transparent procedures governing the use of force.385
The procedures governing the use of force shall specify the type of force that may be used, the circumstances in which it may be used, which members of the prison staff are entitled to use it, what level of staff authority is required before it is used and the reports that must be completed once it has been used.386 Staff shall receive training
380 UNSMR Art 63(3). 381 EPR Rule 51(2). 382 UNSMR Art 63(3). 383 UNSMR Art 67. 384 UNSMR Art 69; EPR Rule 102, Rule 103 and Rule 104; South Africa, Correctional Services Act s 42; Germany, Prison Act s 143. 385 Coyle A Human Rights Approach to Prison Management (2002) 60. 386 EPR Rule 65; EPR Rule 64(2); UNSMR 54(1); Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Art 6 and Art 11.
81 in these procedures and further specialized training to equip them to exercise the type of force that they are authorized to employ.387
Different types of devices may be employed in any given circumstances and their use shall be prescribed by the aforesaid procedures. These may include non-lethal devices, non-lethal incapacitating devices, tear-gas grenades and cartridges, rubber- type ammunition and firearms.388
There are a variety of techniques for controlling violent prisoners and the use of force must be resorted to only when other forms of intervention have failed and then only minimum force should be employed and for the shortest possible duration.389 The force must be proportionate to the legitimate objective.390 These are the basic 391 principles of legitimacy and proportionality.
The purpose of the use of force shall be to maintain good order and safe custody of prisoners.392 The circumstances in which prison staff may use force against prisoners shall be limited to self-defence, the defence of another person, preventing a prisoner from escaping, for the protection of property or to overcome active or passive physical resistance to a lawful order.393
When a prisoner has been subjected to the use of force, he shall immediately thereafter undergo a medical examination and receive the prescribed treatment.394
387 EPR Rule 69(3); UNSMR 54(2); South Africa, Correctional Services Act s 3, s 4, s 5 and s 6. 388 South Africa, Correctional Services Act s 33, s 34 and s 35; Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Art 2. 389 Coyle A Human Rights Approach to Prison Management 37; Van Zyl Smith South African Prison Law and Practice 182; EPR Rule 64(2); UNSMR 54; South Africa, Correctional Services Act s 32. 390 South Africa, Correctional Services Act s 32; EPR Rule 64(1); Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Art 4 and Art 5. 391 Prison Reform International Making Standards Work: An International Handbook on Good Prison Practice 32. 392 South Africa, Correctional Services Act s 32(1)(a). 393 South Africa, Correctional Services Act s 32(c); EPR Rule 64(1); UNSMR 54(1); Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Art 9, Art 15 and Art 16. 394 South Africa, Correctional Services Act s 32 and s 33.
82 2.2.6 INSTRUMENTS OF RESTRAINT
Punishment shall never include the use of instruments of restraint such as handcuffs, chains, irons or strait-jackets as this will constitute cruel, inhuman or degrading treatment or punishment.395
Instruments of restraint shall only be applied as a precaution against escape during a transfer, provided that the instruments shall be removed when the prisoner appears before court396 or, if necessary, in order to protect a prisoner from self-injury, injury to others or to prevent serious damage to property.397
The basic principles of legitimacy and proportionality apply,398 namely, that instruments of restraint shall not be applied for longer than is necessary.
The use of chains or irons shall be prohibited.399
2.3 THE PROHIBITION ON TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT IS AN ABSOLUTE PROHIBITION TO WHICH THE INSUFFICIENT MATERIAL RESOURCES OF THE STATE ARE NOT RELEVANT
No prisoner shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.400 A state may invoke no circumstance whatsoever as a justification for torture or other cruel, inhuman or degrading treatment or punishment.401
395 UNSMR 33; EPR Rule 60(6); South Africa, Correctional Services Act s 31(6). 396 South Africa, Correctional Services Act s 31(2). 397 UNSMR Art 33(a) and (b); EPR Rule 68(2); South Africa, Correctional Services Act s 31(1). 398 EPR Rule 66; UNSMR Art 33; South Africa, Correctional Services Act s 31(3)(b). 399 UNSMR Art 33; EPR Rule 68(1). 400 Universal Declaration of Human Rights Art 5; UNSMR Art 31; International Covenant on Civil and Political Rights (ICCPR) Art 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Art 1; EPR Rule 3; South African Constitution s 12; African Charter on Human and Peoples' Rights Art 5; European Convention on Human Rights Art 3. 401 International Covenant on Civil and Political Rights Art 7; Convention1 Against Torture And Other Cruel, Inhuman or Degrading Treatment or Punishment Art 2 and Art 16.
83 Therefore, it is a fundamental and universally applicable rule of prison law that all prisoners shall be treated with due regard for their humanity and with respect for their dignity.402
Consequently, the application of this rule, as a minimum standard, cannot be dependent on the material resources available to the State.403 Legislation which violates this general principle may therefore be unconstitutional.404
2.4 THE RIGHTS OF PRISONERS APPLY TO ALL PRISONERS
All persons are equal before the law and have the right to equal protection and benefit of the law and the principles protecting prisoners under international prison law are to be applied to all prisoners impartially. There shall be no discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.405
2.5 PRIMACY OF THE PRISONER’S RIGHTS
The purpose of the prison system is to contribute to the maintenance of a just, peaceful and safe society by implementing sentences imposed by courts through the safe and humane custody and supervision of offenders and by their rehabilitation and reintegration into the community.406
402 The Kampala Declaration On Prison Conditions In Africa Art 3; South African Constitution s 35(2)(e). 403 UN Human Rights Committee General Comment 21; EPR Rule 4; Coyle A Human Rights Approach to Prison Management 46; Prison Reform International Making Standards Work: An International Handbook On Good Prison Practice 44; Harris v Thigpen 941 F 2d 1495; Van Biljon v Minister of Correctional Services 1997 SACR 50. 404 In this regard the South African Correctional Services Act may be unconstitutional in that s 12(1) thereof provides that the Department must provide, within its available resources, adequate health care services, based on the principles of primary health care, in order to allow every prisoner to lead a healthy life. This is in direct contradiction to s 35(2)(e) of the South African Constitution which makes the provision of adequate healthcare an absolute duty and not one dependent upon state resources. 405 UNSMR Art 6(1); South African Constitution s 15; International Covenant on Civil and Political Rights Art 2 and Art 10; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Art 1; Universal Declaration of Human Rights Art 2; EPR Rule 1; American Convention on Human Rights, Art 5(2); The African Charter on Human and Peoples’ Rights, Art 5; Basic Principles for the Treatment of Prisoners, Principle 1. 406 Canada, Corrections and Conditional Release Act s 3.
84
Having so restricted certain of the prisoner’s rights by secure imprisonment for the purpose of rehabilitation and social re-integration, respect for the balance of the prisoner’s rights as well as for the care and well-being of the prisoner becomes the primary and foremost duty of the prison authorities and prison staff.
This premise is supported by the following legal principles: i All prisoners shall be detained in a safe environment in which good order prevails.407 ii The prisoner is owed a duty of care by the state when it deprives him of his liberty.408 The primary aspect of that duty of care is to ensure the safety of the prisoner as against prison staff and other prisoners and to provide a safe physical environment. There is a further duty to safeguard the welfare of the prisoner409 and this includes imprisonment under conditions of human dignity including, but not limited to, the provision of proper accommodation, medical care, clothing and bedding, exercise, education, rehabilitative programmes and food. iii Imprisonment, in itself, is punishment by virtue of the deprivation of liberty and self-determination, and the manner in which prisoners are treated shall therefore not aggravate the suffering inherent in imprisonment.410
407 UNSMR Art 27, Art 28; Coyle “Commentary on Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules” (2006) 133; EPR Rule 57; South Africa, Correctional Services Act s 22; Canada, Corrections and Conditional Release Act s 38; Peru, Penitentiary Code 1991 Art 21. 408 UN Human Rights Committee General Comment 21 Art 3. 409 Prison Reform International Making Standards Work: An International Handbook On Good Prison Practice 5; UNSMR Art 27; Universal Declaration of Human Rights Art 3; International Covenant on Civil and Political Rights Art 9(1); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Art 1; South African Constitution s 11 and s 12; South Africa, Correctional Services Act s 2(b). 410 UNSMR Art 57; EPR Rule 102(2); South Africa, Correctional Services Act s 42.
85 iv A prisoner retains all those rights which have not been taken away by law and which are not necessarily inconsistent with the circumstances in which he has been placed.411 v Prisoners are punished by being deprived of their liberty and self- determination.412 No further restrictions on prisoners which will increase the suffering inherent in this form of punishment is permitted.413 The duties and restrictions to which the prisoner is subject are there to guarantee his safe custody by maintaining security and good order in the prison.414 The principles of legitimacy and proportionality apply in that the restrictions must be applied in a manner that conforms with their purpose and do not affect the prisoners to a greater degree or for a longer period than is necessary.415 vi No prisoner shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.416 vii The state shall guarantee the right to security of the prisoner and protection of the prisoner against violence or bodily harm, whether inflicted by government officials or by any individual or group.417
411 Goldberg and Others v The Minister of Prisons and Others 1979 1 SA 14 (A); EPR Rule 2; Basic Principles for the Treatment of Prisoners Art 5. 412 South Africa, Correctional Services Act s 2(a). 413 Coyle A Human Rights Approach to Prison Management 13; The Kampala Declaration On Prison Conditions In Africa Art 4. 414 UNSMR Art 27; EPR Rule 49; South Africa, Correctional Services Act s 4(2)(a). 415 Coyle A Human Rights Approach to Prison Management 169; EPR Rule 2; UNSMR Art 57; EPR Rule 49; The Kampala Declaration on Prison Conditions In Africa Art 2; South Africa, Correctional Services Act s 4(2)(b); Germany, Prison Act s 81. 416 Universal Declaration of Human Rights Art 5; UNSMR Art 31; International Covenant on Civil and Political Rights (ICCPR) Art 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Art 1; EPR Rule 3; South African Constitution s 12; African Charter on Human and Peoples' Rights Art 5. 417 International Convention on the Elimination of All Forms of Racial Discrimination signed by South Africa on 3 Oct 1994 and ratified on 10 Dec 1998; South African Constitution s 12; EPR Rule 5; Universal Declaration of Human Rights Art 3.
86 2.6 LIFE IN PRISON SHALL RESEMBLE THE POSITIVE ASPECTS OF LIFE IN THE COMMUNITY
Due respect for the dignity of prisoners requires that life in prison should seek to minimize any differences between that life and the positive aspects of life at liberty.418
The psychological consequences of imprisonment represent significant difficulties to social re-integration upon release. These consequences disturb the successful re- integration into society including post release employment and parenting capacity.419 One of the causes of these psychological consequences is that conditions of prison life deprive prisoners of their sense of responsibility and their human dignity. Prisons have traditionally sought to regulate the minutiae of the prisoner’s life and accordingly remove opportunities for the prisoner to conduct himself as a responsible adult who can exercise personal initiative.420
In order to reduce the deleterious consequences of imprisonment and to enable the prisoner, on release, to be able to adjust to life in the community, the principle of normalcy is to be applied. This principle does not require that life in prison and in the community be the same in all aspects, such as luxuries, but that they be as similar as possible in those respects which relate to self-determination and responsibility.421
2.7 IMPRISONMENT SHALL BE DESIGNED TO REHABILITATE AND SOCIALLY RE-INTEGRATE PRISONERS
The purpose and justification of a sentence of imprisonment is ultimately to protect society against crime. This can only be achieved if the period of imprisonment is
418 UNSMR 60(1); EPR Rule 5; Germany, Prison Act s 3. 419 Haney “The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment” (2001) From Prison to Home: The Effect of Incarceration and Reentry on Children, Families, and Communities, U.S. Department of Health and Human Services (HHS) http://aspe.hhs.gov/hsp/prison2home02/haney.htm> (accessed 24-06-2013). 420 Prison Reform International Making Standards Work: An International Handbook on Good Prison Practice 22. 421 Ibid.
87 used to ensure, as far as possible, that the prisoner is rehabilitated and able, upon his release, to be socially re-integrated.422
There are five broad principles to be applied to prisons in order to facilitate the prisoner’s reformation and social rehabilitation:
Firstly, imprisonment is afflictive punishment in itself, by virtue of the deprivation of liberty and self-determination, and therefore the manner in which prisoners are treated shall not aggravate the suffering inherent in imprisonment.423
Secondly, the differences between life in prison and the positive aspects of life at liberty shall be minimized as much as possible. A failure to do so tends to lessen the responsibility of the prisoner and fails to respect the prisoner’s dignity as a human being.424
Thirdly, prisoners shall be managed so as to facilitate their reintegration into society. They shall be encouraged to lead a law abiding and self-supporting life when released back into society. The treatment shall therefore encourage their self- respect and develop their sense of responsibility.425
Fourthly, every prisoner shall be assessed to determine his security classification and various needs; medical, educational, social, psychological, religious, development, work and social reintegration. Thereafter, an individualized plan must be created that details the proposed interventions aimed at addressing the aforesaid needs of the prisoner, defines the individualized programmes that are required to rehabilitate and re-integrate him and finally to implement an individualized treatment programme.426
422 International Covenant on Civil and Political Rights Art 10; Universal Declaration of Human Rights Art 26 that emphasizes the right to education; UNSMR Art 58; Basic Principles for the Treatment of Prisoners Art 8; EPR Rule 102(1); Germany, Prison Act s 71. 423 UNSMR Art 57; EPR Rule 102(2); South Africa, Correctional Services Act s 42. 424 EPR Rule 5; UNSMR 60(1); Prison Reform International Making Standards Work: An International Handbook On Good Prison Practice 2nd ed (2001) 21. 425 UNSMR Art 65; EPR Rule 6; South Africa, Correctional Services Act s 2(c). 426 UNSMR Art 63, Art 65 and Art 66; EPR Rules 103 and 104; South Africa, Correctional Services Act s 16, s 36 and s 41; South Africa, Correctional Services Regulations s 10 and s 14; Malawi, Prisons Bill s 43; Corrections and Conditional Release Act s 76 and s 77; Peru, Penitentiary Code 1991 Art 61; Germany, Prison Act s 71.
88
Finally, prior to the release of the prisoner back into free society, steps shall be taken to ensure a gradual return thereto. These steps may include pre-release programmes, partial or conditional release under supervision and co-operation with social services to enable all sentenced prisoners to re-integrate themselves into society with due regard for family life and employment.427
2.8 PRISON STAFF SHALL BE RECRUITED AND TRAINED TO PROPERLY DISCHARGE THEIR DUTY TO CARE FOR PRISONERS AND ACT WITH INTEGRITY
Prisons provide a public service with the objective of contributing to the public good and are thus of great importance.428 Prison staff have considerable power over prisoners and this can easily lead to an abuse of power. Prison staff therefore require a strong ethical framework and should be carefully selected, properly trained, supervised and supported.429 Staff training shall include instruction in international, regional and national human rights instruments and standards. The prison administration shall outlaw corrupt or dishonest430 activities between staff and prisoners.
The role of prison staff is to ensure that prisoners are not treated in a manner which is cruel, inhuman or degrading.431 To this end, they shall ensure that the prison is safe, that security is maintained, that good order and discipline prevail in prison432 and ensure that rehabilitation and re-integration programmes are conducted.433
427 UNSMR Art 79, Art 80 and Art 81; Malawi, Prisons Bill s 42(3). 428 Coyle A Human Rights Approach to Prison Management 13; UNSMR Art 46. 429 Coyle A Human Rights Approach to Prison Management 13; South Africa, Correctional Services Act s 37(1A) and s 96(3); Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Art 18; Collins Jails and the Constitution An Overview 2nd ed (2007) 75. 430 South Africa, Correctional Services Act s 95A. 431 EPR Rule 72(1). 432 EPR Rule 73; South Africa, Correctional Services Act s 26. 433 Coyle A Human Rights Approach to Prison Management 14; EPR Rule 72(3); South Africa, Correctional Services Act s 96(1).
89 As representatives of the community, members of staff shall at all times conduct themselves and perform their duties in a manner that serves as a good example to the prisoners and commands their respect.434
Prison staff shall include specialists necessary to care for the prisoners and to facilitate their rehabilitation and re-integration into society. These specialists should include psychiatrists, psychologists, social workers, teachers and trade instructors.435
Male staff members shall not keep the keys to the female section of the prison and nor shall they enter without being accompanied by a responsible female staff member.436
2.9 IMPRISONMENT IS A PUNISHMENT IN AND OF ITSELF AND THEREFORE CONDITIONS OF IMPRISONMENT SHALL NOT AGGRAVATE THE SUFFERING INHERENT IN IMPRISONMENT
This rule is a logical corollary of the rule that any limitation of a prisoner’s rights is to be the minimum necessary and proportionate to the legitimate objective for which the limitation is imposed.
The rule has been expressed as an obligation upon the authorities not to cause distress to prisoners that exceed the unavoidable level of suffering inherent in imprisonment,437 since the deprivation of liberty and self-determination is the punishment and prison is not a place for punishment. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation.
434 UNSMR Art 48; EPR Rule 75. 435 UNSMR Art 49; South Africa, Correctional Services Act; EPR Rule 89; The Kampala Declaration on Prison Conditions In Africa Art 6. 436 UNSMR Art 53. 437 Raffray Taddei v France (36435/07) (2010)
90 Imprisonment should not include any additional punitive elements438 since imprisonment is by its very nature afflictive by depriving a person of the right of self- determination and liberty. The manner in which prisoners are treated shall not aggravate the suffering inherent in imprisonment.439
Thus, prisoners are sent to prison as punishment and not for punishment and the method in which they are cared for and treated must therefore not be punitive.440 Prison staff therefore have no right to inflict additional punishment on prisoners by treating them in a manner that is not consistent with humane conditions of imprisonment.441
2.10 RESTRICTIONS PLACED ON PRISONERS SHALL BE THE MINIMUM NECESSARY AND PROPORTIONATE TO THE LEGITIMATE OBJECTIVE FOR WHICH THEY ARE IMPOSED
Prison staff are tasked with practically implementing the sentences of the courts by depriving prisoners of their liberty and self-determination.442 They are not empowered to impose any further restrictions on prisoners which will increase the suffering inherent in this form of punishment.443 The duties and restrictions to which the prisoner is subject are there to guarantee his safe custody by maintaining security and good order in the prison.444 These duties and restrictions must be applied in a manner that conforms with their purpose and do not affect the prisoners to a greater degree or for a longer period than is necessary.445
438 UNSMR 57; EPR Rule 6 and Rule 102; The Kampala Declaration on Prison Conditions In Africa Art 4. 439 UNSMR Art 57; EPR Rule 102(2); The Kampala Declaration on Prison Conditions In Africa Art 4; South Africa, Correctional Services Act s 42. 440 Prison Reform International Making Standards Work: An International Handbook on Good Prison Practice 117. 441 Coyle A Human Rights Approach to Prison Management 31. 442 South Africa, Correctional Services Act s 2(a). 443 Coyle A Human Rights Approach to Prison Management 13; The Kampala Declaration on Prison Conditions In Africa Art 4; Coyle “Commentary on Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules” (2006) 102. 444 UNSMR Art 27; EPR Rule 49; South Africa, Correctional Services Act s 4(2)(a). 445 Coyle A Human Rights Approach to Prison Management 169; EPR Rule 2; UNSMR Art 57; EPR Rule 49; The Kampala Declaration on Prison Conditions In Africa Art 2; South Africa, Correctional Services Act s 4(2)(b); Germany, Prison Act s 81.
91 A prisoner retains all those rights which have not been taken away by law and which are not necessarily inconsistent with the circumstances in which he has been placed.446
Prison serves the purpose of rehabilitating and reintegrating prisoners into society and there shall be as small a difference as necessary between prison and life in the 447 broader community. Accordingly, the security measures applied to individual prisoners shall be the minimum necessary to achieve their secure safe custody and good order in the prison.448
2.11 A PRISONER RETAINS ALL THOSE RIGHTS WHICH HAVE NOT BEEN TAKEN AWAY BY LAW AND WHICH ARE NOT NECESSARILY INCONSISTENT WITH THE CIRCUMSTANCES IN WHICH HE HAS BEEN PLACED
A prisoner retains all those rights which have not been taken away by law and which are not necessarily inconsistent with the circumstances in which he has been placed. Therefore steps should be taken to protect, to the maximum extent compatible with the law and the sentence, the rights, civil interests, social security rights and other social benefits of the prisoner.449
In South Africa this principle was articulated in a minority decision in Goldberg v Minister of Prisons450 where it was held that a sentenced prisoner retains all the basic rights and liberties of an ordinary citizen except those taken away by law, expressly or by implication, or those necessarily inconsistent with the circumstances in which he, as a prisoner, is placed. Despite the limitations inherent in imprisonment, including limitations on freedom of movement or place of imprisonment, limitation and regulation of contact with the outside world and the discipline of prison life, there
446 Goldberg and Others v The Minister of Prisons and Others supra; EPR Rule 2; Basic Principles for the Treatment of Prisoners Art 5. 447 Prison Reform International Making Standards Work: An International Handbook on Good Prison Practice 166; UNSMR Art 27; The Kampala Declaration on Prison Conditions In Africa Art 7. 448 South Africa, Correctional Services Act s 22(1). 449 Goldberg and Others v The Minister of Prisons and Others supra; EPR Rule 2; Basic Principles for the Treatment of Prisoners Art 5; UNSMR Art 61; South Africa, Correctional Services Act s 4(2)(b); The Kampala Declaration on Prison Conditions In Africa Art 2. 450 1979 (1) SA (14) (A).
92 remains nevertheless a substantial residuum of basic rights which the prisoner cannot be denied.
2.12 PRISONERS’ AVENUES OF PROTECTION, REDRESS AND REMEDIES
2.12.1 PRISONS SHALL BE AS OPEN AND TRANSPARENT AS POSSIBLE
In prisons there is always a risk of a violation of human rights and abuse of power by prison officials. A basic principle for safeguarding the human rights of prisoners is that prisons should be open to the outside world and independent scrutiny. Similarly, prisoners should have access to the outside world in a manner that is subject to the requirements of security and good order.451
2.12.2 COMPLAINTS AND REQUESTS
Every prisoner shall have the right to make requests or complaints to the director of the prison. If there is an inspector of prisons, then the prisoner shall be entitled to make requests or complaints during his inspection. Any request or complaint shall not be censored and provided that it is not frivolous or groundless, shall be given attention and a reply sent to the prisoner.452
2.12.3 INSPECTORATE
Independent inspection of conditions of detention and treatment of prisoners is essential to prevent torture or cruel, inhuman or degrading treatment or punishment.453 The inspectorate shall be an independent body that shall make its findings public.454
451 Prison Reform International Making Standards Work: An International Handbook on Good Prison Practice 6; Commentary to EPR Rule 92; Coyle A Human Rights Approach to Prison Management 13; Canada, Corrections and Conditional Release Act s 4(c). 452 UNSMR 36; International Covenant on Civil and Political Rights Art 2; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Principle 33; EPR Rules 50 and 70; South Africa, Correctional Services Act s 21; Malawi, Prisons Bill s 20; Germany, Prison Act s 108. 453 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Art 29; Standard Minimum Rules for the Treatment of Prisoners Art 55; South Africa, Correctional Services Act s 85; Malawi, Prisons Bill s 95; The Kampala Declaration on
93
A prisoner shall have the right to communicate freely and in confidence with the representatives of the independent inspectorate subject to the demands of security and good order in the prison.455
2.12.4 RIGHT OF RECOURSE TO COURT
Every prisoner, subject to due procedure, has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing.456
A prisoner is entitled to take proceedings before a court, in order that the court may decide, without delay, on the lawfulness of his detention and order his release if the detention is not lawful.457
Every prisoner has the right to an effective remedy by a competent national tribunal or court for acts violating the fundamental rights granted him by the constitution or by law.458
3. COMPARATIVE LAW
Application of the above principles will be considered in various jurisdictions.
Prison Conditions In Africa: Plan of Action for The Kampala Declaration on Prison Conditions In Africa Art 5(H). 454 EPR Rule 93(1); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Art 29(1); South Africa, Correctional Services Act s 89; Malawi, Prisons Bill s 96. 455 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Art 29(2); South Africa, Correctional Services Act s 92; Malawi, Prisons Bill s 95; International Covenant on Civil and Political Rights Art 2(3) as read with Art 7. 456 European Convention on Human Rights Art 6; South African Constitution s 34; Universal Declaration of Human Rights Art 8. 457 ICCPR Art 9(4), American Declaration of the Rights and Duties of Man, Art 18, Protection of All Persons under Any Form of Detention or Imprisonment, G.A. res. 43/173, U.N. Doc. A/43/49 (1988), Principle 32, American Convention on Human Rights Art 7(6), European Convention on Human Rights Art 5(4), UDHR Art 8, the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines) Art 20. 458 UDHR Art 8, the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island Guidelines) Art 17, 18 and 19, African (Banjul) Charter On Human And Peoples' Rights Art 26, CAT Art 11, 12, 13, 14, 15 and 16, European Convention on Human Rights Art 13 and 34.
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Firstly, legal principles in the United States of America and Europe will be considered because the law in these jurisdictions is often based upon fundamental rights similar to those contained in the South African Constitution and, moreover, the law in those jurisdictions is relatively well developed. Secondly, where possible, African jurisprudence will be considered since South Africa seeks to integrate African values into its traditionally eurocentric legal system.459
This section will be divided into five sub-sections, namely, limitation of rights, the prohibition on cruel, inhuman or degrading treatment or punishment, good order, the state’s potential defence of insufficient resources and the remedies at the disposal of a prisoner whose fundamental rights have been violated.
The second sub-section which considers the prohibition on cruel, inhuman or degrading treatment or punishment will be further sub-divided into three separate sections, namely, the duty of care owed by the state to prisoners, the conditions of detention and physical and mental health.
The third sub-section, namely, good order, will be divided into two sub-sections, namely, searches and discipline.
The fifth sub-section, namely, the remedies of the prisoner when his fundamental rights have been breached, will consider the right of access to court and then, secondly, the types of remedies that a court may employ in order to remedy the breach.
The general position in the United States of America is governed by the Constitution as the supreme law of the country, as interpreted by the courts, which protects individuals from federal action. The first important provision is the First Amendment which relates to the free exercise of religion and freedom of speech. The second important provision is the Fourth Amendment which guards against unreasonable search and seizures, along with requiring any warrant to be judicially sanctioned and
459 Vida infra the discussion on Ubuntu in s 5 in the South African Common Law of Prisoner Rights.
95 supported by probable cause. The final provision, which is of importance to convicted prisoners, is the Eighth Amendment which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments, including torture. This provision is important in the context of excessive use of force, failure to provide medical care and conditions of imprisonment.460
The European position is more complex. The Council of Europe was established by the Treaty of London in 1949.461 This organization is different to the European Union. Member States overlap in many instances but the European Union has its origins in economic co-operation. The European Union also has as one of its bodies the European Parliament.
In terms of the Treaty of London, the Council of Europe would have as its focus the rights and freedoms of the member states through a Consultative or Parliamentary Assembly and a Committee of Ministers. Part of this latter organization adopted the European Convention on Human Rights (ECHR) in 1953 and policed it by the European Commission of Human Rights (EComHR) and the European Court of Human Rights (ECtHR).462
Prior to an individual being able to bring a complaint concerning a violation of the Convention before either the court or the Committee of Ministers, he had to exhaust domestic remedies first before applying to the Commission of Human Rights to resolve it.463
A further treaty entered into by members of the Council of Europe in 1989 was the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT). In terms of this treaty a committee was established namely, the European Committee for the Prevention of Torture and
460 Palmer Constitutional Rights of Prisoners 5, 6, 7. 461 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 9. 462 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 10. 463 Ibid.
96 Inhuman or Degrading Treatment or Punishment (the CPT) which renders annual reports with regard to its findings.
In addition to these annual reports, it also provides general comments on best practice in prisons as well as unacceptable practice. The CPT conducts visits to institutions and accordingly its findings are based on experience and its recommendations are detailed and practical.464
The Committee of Ministers of the Council of Europe also established the European Committee on Crime Problems (CDPC) as a specialist organ with a focus on penological matters. This latter specialist body puts forward resolutions to be adopted by the Committee of Ministers. The first resolution that was adopted related to the electoral rights of prisoners. The Committee of Ministers adopted the European Standard Minimum Rules for the Treatment of Prisoners (ESMR) in 1973. These were substantially similar to those rules contained in the UNSMR.465
The CPT was pursuing its mandate with a specific concern for overcrowding as the primary cause of inhuman and degrading treatment. This influenced the Committee of Ministers to adopt, in 1999, the Recommendation concerning Prison Overcrowding and Prison Population Inflation. The departure point for this Recommendation was that deprivation of liberty should be regarded as a sanction of last resort and should therefore only be employed when the seriousness of the offence would make any other sanction or measure manifestly inadequate.466
The Committee of Ministers in the 1990’s was concerned with the problems associated with overcrowding, namely, HIV-AIDS and drug resistant tuberculosis in prisons which was also a concern of the CPT.467
464 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 14. 465 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 20. 466 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 24. 467 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 25.
97 The most important recent Recommendation of the Committee of Ministers of the Council of Europe was the adoption in 2006 of the new European Prison Rules.468
In the African context The African Charter on Human and Peoples’ Rights (also known as the Banjul Charter)469 was created under the auspices of the Organisation of African Unity, later known as the African Union. This Charter established the African Commission on Human and Peoples’ Rights. The Commission’s Secretariat is located in Banjul, The Gambia. The Commission is officially charged with three major functions concerning human and peoples’ rights, namely, protection, promotion and interpretation.
Article 45(2) provides that the Commission shall take steps to ensure the protection of human and peoples’ rights under conditions laid down in the Charter. To give effect to this mandate, the Charter provides for a communication procedure. This is a complaint system through which an individual or group of individuals may complain about violations of fundamental rights which are protected in terms of the Charter. After the complaining party and the State have submitted their versions of the events and their arguments, the Commission will decide whether there has been violation. The Commission may then make recommendations to the offending state and to the AU Assembly on what remedial steps the state should take. It is to certain of these recommendations that reference will also be made below.470
3.1 LIMITATION OF RIGHTS
In the United States of America a fundamental right can be limited by the prison authorities provided that it is linked to a legitimate penological interest. The manner to determine this was set out in Turner v. Safley471 where the court was called upon to decide upon the constitutionality of two regulations that limited the rights of prisoners. The first concerned a limitation on correspondence between prisoners,
468 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 35. 469 African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982). 470 Chapters II and III. 471 482 U.S. 78 (1987).
98 other than to family, and correspondence related to legal matters. The regulation only permitted correspondence if each prisoner's classification/treatment team deemed it in the best interests of the parties. The second limitation only permitted a prisoner to marry with the prison superintendent's permission, which could only be given when compelling reasons were present. The evidence that was led established that the only reasons that the prison superintendents regarded as compelling were pregnancy or the birth of an illegitimate child.
The court held that when a prison regulation impinges on prisoner’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. In deciding whether it is related to a legitimate penological interest, there are four important considerations.
Firstly, there must be a valid, rational connection between the prison regulation and the legitimate interest put forward to justify it, that is, there must be a relationship between the restriction and the legitimate interest of the institution.472
Secondly, the court must consider whether there are alternative means that exist for the prisoner to still exercise his right even if the limitation is imposed.473
Thirdly, the impact on other prisoners, staff and prison resources is to be considered in the event of the limitation not being applied to the prisoner, that is, if the prisoner is permitted to exercise the right claimed. This is referred to by the court as the impact accommodation test. The test is therefore one of assessing the impact on the prison of accommodating that particular right.474
Finally, the court is to consider whether there are ready alternatives that exist which would allow the prisoner to exercise his right and still satisfy the legitimate interests of the prison. The absence of ready alternatives is an important indication of the reasonableness of the limitation.475
472 Par 89. 473 Par 90. 474 Ibid. 475 Ibid.
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The court held that the threat of prison escape and the development of prison gangs were the reasons for limiting general correspondence between prisoners. The court then applied the above test and found that the prohibition on correspondence was reasonably related to valid penological goals. The limitation advanced the goals of prison security and safety. The court also held that the limitation was not an exaggerated response to those objectives and therefore the limitation was a valid limitation of the freedom of speech, that is, a First Amendment right.476
The court then applied the above test to the prohibition on prisoners getting married. The court held that marriage is a constitutionally protected right and then considered whether the limitation was a valid limitation. It was held that no valid penological interest was being protected by the limitation. The response to such threats as might arise following a marriage was an exaggerated one. The court therefore struck down the limitation.477
The position in Europe is similar. The concept of a democratic constitutional state has three fundamental principles, namely, recognition of fundamental rights and liberties, the rule of law and democracy.478
All three of these principles support the recognition of prisoner rights. Limitations of the fundamental right must be necessary to be legitimate. The idea of necessity is wider than only the prisoner’s interests and also entails the interests of the families of the prisoner, the victims of the crime and society at large. Interference must be minimal and proportional.479 Therefore, all limitations must meet the strict requirements of legality, legitimacy and proportionality.480
476 Par 93. 477 Par 99. 478 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 65. 479 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 66. 480 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 91.
100 Articles 8 to 11481 of the ECHR each have a general limitation clause which expressly states the criterion for the legitimacy of a limitation. The relevant articles state that that there shall be no interference by a public authority in the exercise of this right except such as is in accordance with the law and is necessary in a democratic society. Necessity is defined as being in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
3.2 PROHIBITION ON CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Prior to commencing the discussion on the comparative legal position in Europe and the United States of America it is necessary to locate the prohibition on torture or to inhuman or degrading treatment or punishment within their legal systems.
Article 3 of the European Convention on Human Rights provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.
The Eighth Amendment to the United States Constitution prohibits excessive bail, excessive fines and cruel and unusual punishments. There is no reference to inhuman or degrading punishment. Cruel and unusual treatment is also not prohibited. The Supreme Court482 has held that there is a distinction between the sentence that is imposed, and the constitutionality thereof, on the one hand and the resulting conditions of imprisonment on the other.
As a result a prisoner alleging that his conditions of imprisonment are such as to constitute cruel and unusual punishment must allege and prove a culpable state of mind on the part of the prison officials in addition to afflictive conditions. The standard to be employed in this context is that of deliberate indifference.483 The conditions of detention will only become actionable where the official charged with
481 Art 8 Right to respect for private and family life, Art 9 Freedom of thought, conscience and religion, Art10 Freedom of expression, Art11 Freedom of assembly and association. 482 Wilson v Seiter 111 S. Ct. 2321 (1991). 483 Estelle v Gamble 429 U.S. 97 (1976).
101 the duty of caring for the prisoner had actual knowledge of a problem before the official can be deliberately indifferent. Thus, the official must know of the excessive risk to the prisoner’s health or safety and disregard that risk.484 This will be discussed in more detail below.485
The importance of this is that where the failure to provide basic necessities is due to a factor other than deliberate indifference, the failure will not be a breach of the Eighth Amendment.486 However, where there are continued poor conditions of detention, as opposed to a single event, this may be proof of the required mental state. In Rhodes v Chapman487 “double bunking” (lodging two prisoners in one cell) was held not to be a violation of the Eighth Amendment. In Whitley v Albers488 the shooting of a prisoner during a riot was not cruel and unusual punishment because the act was one of inadvertent error in good faith and not one of wanton obduracy. Where the failure was to deprive the prisoner of necessary essential medical care, food and sanitation, then there was an Eighth Amendment violation.489
Further, the possible implication of the mental state requirement is that the conduct of which is complained, such as failure to provide medical care, or food or sufficient space must be judged in relation to the facilities available to the prison officials and not in relation to the effect of the deprivation on the prisoner.490
Where there is an excessive use of force on the prisoner, as opposed to a neglect of the prisoners needs, it is not necessary to prove a significant injury but rather the prisoner must show he was subjected to “wanton and unnecessary infliction of pain”.491
Prior to commencing this discussion, it is necessary to discuss briefly a law that appears at Title 42 of the United States Code in Section 1983. The law provides that
484 Farmer v Brennan 511 U.S. 825 (1994) 511 at 837. 485 Vida infra. 486 Wilson v Seiter supra 2331. 487 452 U.S. 337 (1981). 488 475 U.S. 312 (1986). 489 Estelle v Gamble 429 U.S. 97 (1976). 490 Wilson v Seiter supra 23, 26-27. 491 Hudson v McMillian 503 U.S. 1 (1993).
102 every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state or territory, subjects, or causes to be subject, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
This law is generally employed as a means by which persons can institute action against state and local government officials for violations of constitutional rights.492 This law is employed for a number of reasons but they include fee shifting, that is where attorney fees can be awarded, permitting a state action to be brought in federal courts, longer prescription periods to state law and the award of punitive damages. However, an action brought under this law is more onerous to prove than a normal tort case.493
3.2.1 DUTY OF CARE
The prisoner is owed a duty of care by the state when it deprives him of his liberty. The foremost aspect of that duty of care is to ensure the safety of the prisoner and a further aspect is to safeguard the welfare of the prisoner.
Prison authorities shall create environments in which all prisoners can be safe and free from abuse and where all prisoners are able to mix without fear of assault or other violence, whether from staff or other prisoners.
This duty will be explored in greater detail below.
3.2.1.1 BRUTALITY BY FELLOW PRISONERS
All prisoners shall be detained in a safe environment in which good order prevails and this imposes a duty upon the State to protect prisoners from fellow prisoners. A
492 Collins Jails and the Constitution An Overview 21. 493 Schwartz and Urbonya Section 1983 Litigation 2nd ed (2009) 109, 110, 116, 95.
103 failure to fulfill this duty can result in the prisoner being subjected to torture or cruel, inhuman or degrading treatment or punishment.
The legal position in the United States of America was fully articulated in Farmer v. Brennan.494 Dee Farmer was a transsexual who suffered from a psychological condition and underwent various medical procedures in order to effect a full physical sex change. These physical procedures included estrogen treatment and an attempted “black market” testicular removal. The court described the plaintiff in the matter as displaying feminine characteristics which were generally known to expose prisoners to sexual abuse in prisons. In addition to these characteristics, there were specific incidents that alerted the prison authorities to the vulnerability of the plaintiff. Despite these vulnerabilities and characteristics, the plaintiff was imprisoned with the general population and as a result, he was raped and beaten on several occasions by the other prisoners and contracted HIV as a consequence.
The court held that even though the Constitution does not mandate comfortable prisons, it does require prison officials take reasonable measures to guarantee the safety of the prisoners495 as well as humane conditions of confinement.496 The court held that when the state imprisons a person, it strips him of virtually every means of self-protection and has closed off his access to outside aid. Having so removed the prisoner’s means of protection, the prison officials are not free to let the state of nature take its course. Furthermore, even if prison conditions are restrictive, or even harsh, this does not permit gratuitously allowing the beating or rape of one prisoner by another. Allowing that to occur serves no legitimate penological purpose497 and furthermore, being violently assaulted in prison is not part of the penalty that criminal offenders pay for their crimes against society.498
However, not all violence suffered by a prisoner at the hands of another prisoner is actionable. There are two requirements that have to be met in order to found an
494 511 U.S. 825 (1994). 495 832, Wilson v Seiter 501 U. S 294 (1991), at 303; Cortes-Quinones v Jimenez-Nettleship, 842 F. 2d 556, 558 (CA1). 496 Hudson v Palmer 468 U. S. 517, 526–527 (1984). 497 Farmer v Brennan supra. 498 834, Estelle v Gamble supra; Trop v Dulles 356 U. S. 86, 101 (1958).
104 Eighth Amendment claim. The first is that the deprivation alleged must be sufficiently serious, that is that the prison official’s act or omission must result in a denial of the minimal civilized measure of life’s necessities. For a claim based upon a failure to prevent harm, the prisoner must show that he is incarcerated under conditions posing a substantial risk of serious harm.499
The second requirement follows from the principle that only the unnecessary and wanton infliction of pain gives rise to an Eighth Amendment claim.500 To violate the Eighth Amendment, the prison official must have a sufficiently culpable state of mind. The standard to be employed in deciding whether or not this state of mind is present is one of “deliberate indifference” to prisoner health or safety.501
The court discussed the meaning of deliberate indifference. It held that deliberate indifference entails something more than mere negligence but something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.502
The court distinguished the “failure to protect” type of cases from those cases where officials are accused of using excessive physical force. In the “excessive use of force” cases even a higher standard is applicable than in the “failure to protect” type of cases. The reason is that in the “excessive use of force” cases, prison officials are typically in situations where the decisions must be made in haste, under pressure, and usually without the opportunity of a second chance.503 In these “excessive use of force” cases, the standard to be employed is that the prison official must have acted maliciously and sadistically for the very purpose of causing harm or, phrased differently, that the prison officials used force with a knowing willingness that harm occurs.504
499 834. 500 834, Wilson v Seiter 501 U. S 294 (1991). 501 834, Helling v McKinney 509 U. S. 25 (1993). 502 835. 503 835; Hudson v McMillian supra. 504 835.
105 The court held that deliberate indifference is a state of mind which is located between negligence, on the one hand, and purpose or knowledge on the other. The court equated it with recklessness.505 It held that acting or failing to act with deliberate indifference to a substantial risk of serious harm to the prisoner is the equivalent of recklessly disregarding that risk.506
The court went on to distinguish between civil law recklessness and criminal law recklessness as two possible standards that could be employed to properly define recklessness in this context. Firstly, it defined civil law or objective recklessness as when a person acts or fails to act when they have a duty to do so in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known.507 Secondly, it defined subjective or criminal recklessness as when a person disregards a risk of harm of which he is aware.508
The court found that a prison official can only be found liable under the Eighth Amendment for denying a prisoner humane conditions of confinement if that official knows of and disregards an excessive risk to prisoner health or safety. Further, the court held that the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and that he must also draw the inference.509 This is the subjective test.
The court justified this finding on the basis of the wording of the Eighth Amendment, namely, the prohibition on cruel and unusual punishments and not cruel and unusual conditions. Conditions may be actionable under tort law, but litigation under the Eighth Amendment requires a subjective state of mind. Thus, the Eighth Amendment does not allow liability to be imposed on prison officials solely because of the presence of objectively inhumane prison conditions.510
505 836; Redman v County of San Diego, 942 F. 2d 1435, 1443 (CA9 1991). 506 836. 507 836. 508 837. 509 837. 510 838, Wilson v Seiter supra.
106 However, whether a prison official has the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence. Accordingly, a court may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious, and therefore the objective component may be relevant.511
Furthermore, the court held that this subjective standard does not permit a prison official to escape liability for deliberate indifference by showing that, while he was aware of an obvious, substantial risk to prisoner safety, he did not know which specific prisoner was likely to commit the assault. The question is whether a prison official, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial risk of serious damage to his future health.512
The court also noted that prison officials who actually knew of a substantial risk to prisoner health or safety may escape liability if they responded reasonably to the risk, even if the harm was not averted. Therefore, even if the foreseeable harm occurs the prison officials will not be held liable if they took reasonable steps to ensure the safety of the prisoner.513
Finally, the court rejected the argument that a subjective deliberate indifference test will require prisoners to suffer physical injury before obtaining a court order to correct objectively inhumane prison conditions. The court held that this test was only for Eighth Amendment liability and not a test for injunctive relief.514
The court in this matter was called upon to adjudicate the pleadings and not the facts. The court decided in favour of the prisoner/plaintiff but was not required to make a final finding on the facts.
511 842. 512 843. 513 844. 514 845.
107 In the United States of America in the matter Redman v County of San Diego,515 overcrowding had led to deficient classification procedures and a young detainee was placed in the same cell as an aggressive homosexual. The young prisoner was then raped and stabbed by the predatory homosexual. The prison staff did not know of the exact circumstances but were deliberately indifferent to the safety of the prisoner since they knew of the overcrowding and the deficient classification procedures. The court awarded damages to the plaintiff.
The physical structure combined with operating procedures can lead to the conclusion of deliberate indifference. In Butler v. Dowd516 prisoners were housed in “double bunking” cells. Monitoring of the cells themselves was not possible from the central control room which could only monitor the hallways by means of cameras although there were some patrols of the corridors. Furthermore, the prisoners’ only contact with the prison staff was by means of four microphones posted at various points in the hallways. In order to be heard by the staff in the control room it was necessary to shout loudly in the direction of the microphones. Prisoners could move freely about in the hallways at certain times and the staff could only verify if there were two prisoners in each cell, not whether they were the correct two prisoners.517
The physical structure of the prison combined with the operating procedures of the staff meant that violence amongst the prisoners could occur relatively easily. This was found to constitute deliberate indifference and the prison staff were held liable for several homosexual rapes of prisoners that had occurred. The award given by the jury was nominal for a number of reasons and the appeal to overturn that award was unsuccessful.518
The prevalence of prison rape has been studied in the United States of America where it occurs to between 9% and 23% of all prisoners.519 This high figure combined with the large number of prisoners who are detained and then released
515 942 F.2d 1435 (9th Cir., 1991). 516 979 F.2d 661 (8th Cir., 1992). 517 Paras 2 and 3. 518 Par 45. 519 Peek and Christine “Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment” (2003) Santa Clara Law Rev 44 1211 1223.
108 into the general population aggravate the spread of HIV and hepatitis. This phenomenon is a major public health concern. So prevalent is the problem in the United States of America that it led to the passing of the Prison Rape Elimination Act of 2003. This Act created a National Prison Rape Elimination Commission and tasked it with developing standards for the elimination of prison rape. Those standards became final in August 2012.520
The position in Europe, as stated above, is based upon the standards encompassed in the EPR which in turn is based on the ECHR.521 Rule 52.2 provides that procedures shall be in place to ensure the safety of prisoners, prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety. The commentary on the rules emphasizes the risks inherent in prisons. The rule recognizes that it is preferable that prisoner should be housed in single cells unless there are exceptional circumstances indicating that the prisoner would benefit from another type of accommodation.522 The European Committee for the Prevention of Torture has stated that large-capacity dormitories are inherently undesirable.523
The European Committee for the Prevention of Torture524 has reported that the cornerstone of a humane prison system are properly recruited and trained prison staff who know how to adopt the appropriate attitude in their relations with prisoners and see their work more as a vocation than as a mere job.
The European Committee for the Prevention of Torture525 has also reported that prison staff owe a duty of care to those in their charge which includes the responsibility to protect them from other prisoners who wish to cause them harm and that to address this problem, there must be adequate prison staff who are able to
520 National PREA Resource Centre "Prison Rape Elimination Act" (2013)
109 exercise their authority and their supervisory tasks in an appropriate manner. They must also be alert to signs of trouble and be properly trained to intervene when necessary. This also requires a positive relationship between prisoners and staff. Prison management must be prepared fully to support staff in the exercise of their authority.
In Premininy v. Russia526 the prisoner was systematically humiliated and assaulted by fellow prisoners who used sticks supplied by the prison officials.527 He was concussed and sustained various physical injuries as a result of the assaults. As a result of the beatings and humiliation, the prisoner was found to be suffering from mental-health problems. The court held that the authorities had been aware of the situation and should reasonably have foreseen that the prisoner’s own provocative behaviour rendered him more susceptible to the risk of violence than the average prisoner. The systematic abuse over a period of a week also meant that the prison authorities must have noticed the signs of abuse since there were visible injuries.528
The court held that these factors should have alerted the prison authorities to the need to introduce specific security and surveillance measures to protect the prisoner from the abuse, both physical and psychological. The prison officials had no clear policy on classification and housing nor to monitor violent or vulnerable prisoners. They had also not taken disciplinary steps against the perpetrators of the abuse, nor had there been any attempts to provide the prisoner with psychological rehabilitation after the abuse.529
The court thus found that the prison had not fulfilled its duty to adequately secure the prisoner’s physical and psychological integrity and well-being. The court then held that there had been a violation of Article 3 of the ECHR which provides for protection against inhuman or degrading treatment. The court then made a damages award.530
526 (No. 44973/04) (2011)< http://echr.ketse.com/doc/30943.04-en-20110210/view/ > (accessed 26-03-2013). 527 Para 32-46. 528 Paras 42-50. 529 Paras 86-90. 530 Final judgment par 1-8.
110 In the Namibian case of Paul Kennedy and Others v The Minister of Prisons and Correctional Services531 the dangers of poorly matched prisoners placed in communal cells was aptly illustrated as was the dangers of prison gangs. The plaintiffs in this matter had been severely injured after a gang fight had broken out following a dispute about money.
The court found that there was duty upon the prison officials to protect the personal security of the prisoners under their care and supervision and that the objectives of punishment would be frustrated if prisoners were subjected to institutionalized gangsterism,532 sexual abuse and violence.533
The court noted that a prison constitutes a captive environment from which the victims of such aberrational conduct cannot escape. This explains why the duty of protection is onerous and important. These abuses are to be addressed in the management approach of the prison authorities. The court further held that the failure to respect the dignity and personal safety and security of prisoners and the failure to create a rehabilitative environment within which a prisoner may serve his sentence will cause the prisons to fail as “correctional institutions”. These results would defeat the objectives that the courts and the penal system are supposed to achieve.
Even though the court endorsed the aforesaid principles, the action failed. The reason was because the plaintiffs relied upon the negligence of the prison warder for not opening the cell gate whilst they were being beaten to death. The court held that if he had opened the gate, then this may have resulted in a mass escape and possibly his own murder. Therefore his refusal to open the gate was not actionable.534
531 (147/2005) Nms (24/06/2008)
111 The decision can be criticized on the basis that the imprisonment of rival gangs in a communal cell is negligent per se since the prison authorities know that this has the potential to easily result in violent fights.
3.2.1.2 ASSAULT BY STAFF
Prison staff are permitted to use force in certain circumstances, including protecting themselves or others, protecting property, enforcing orders, and maintaining jail safety and security.
In the United States of America, excessive use of force violates the Eighth Amendment and then becomes cruel and unusual punishment if it involves the wanton and unnecessary infliction of pain.535 The duty to care for the prisoners and to ensure their safety extends to a prohibition on the use of excessive force by staff.
The legal position in the United States of America was discussed in Farmer v Brennan.536 The court held that “excessive use of physical force” by prison officials typically occurs in situations where the decisions must be made in haste, under pressure, and usually without the opportunity of a second chance.537 In these cases the standard to be employed is that the prison official acted maliciously and sadistically for the very purpose of causing harm or, phrased differently, that the prison officials used force with a knowing willingness that harm occurs.538
Thus in Hudson v McMillian,539 the court held that where a prisoner is beaten by prison staff the litigant need not plead a significant injury to prove an Eighth Amendment violation but merely that he was subjected to wanton and unnecessary infliction of pain. The severity of the assault is relevant in determining whether the assault constituted cruel and unusual punishment.
535 Collins Jails and the Constitution An Overview 41. 536 511 U.S. 825 (1994). 537 835; Hudson v McMillian supra. 538 835. 539 503 U.S. 1 (1993).
112 The Supreme Court also laid down certain considerations for determining whether the use of force was permissible in particular circumstances. These considerations included whether there was a need for force to be employed, the amount of force actually employed, the extent of the injuries suffered, the threat perceived by a reasonable correctional staff member and efforts made by officials to limit the use of force.540
In Europe the use of force is defined by the EPR rule 64 which provides that prison staff shall not use force against prisoners except in self-defence, defence of other persons or property, in cases of attempted escape or in cases of active or passive physical resistance to a lawful order and then always as a last resort. The rules of legality and proportionality apply, that is, that the amount of force used shall be the minimum necessary and shall be imposed for the shortest time necessary. Rule 65 sets out the procedures governing the use of force and rule 66 requires that staff be properly trained in the use of force.
In Kucheruk v Ukraine541 the applicant suffered from chronic schizophrenia. He was arrested on charges of theft and hooliganism. Whilst in detention he was transferred to a psychiatric hospital for assessment and then transferred back to the pre-trial detention facility. Whilst in the pre-trial facility he became particularly agitated. The medical staff called three prison guards in order to assist them. The guards ordered him to face the wall and to put his hands behind his back. He refused to obey this instruction and the guards beat the applicant with truncheons, forced him to the floor and handcuffed him.
The court found that the plaintiff had suffered injuries as a result of the beating with truncheons which were sufficiently serious to be considered under Article 3.
The court further found that the applicant’s earlier agitated behavior had alerted the staff to the risks of working with the prisoner. The prisoner’s conduct however was not an attack on the guards or upon other prisoners. The use of truncheons was
540 Collins Jails and the Constitution An Overview 41. 541 [2007] ECHR Application No 2570/04 (6 September 2007).
113 therefore unjustified and amounted to inhuman treatment. There had accordingly been a violation of Article 3.
In Satik and Others v Turkey542 the applicants were taken from their cells to an area of a local prison in order to be brought before the State Security Court for trial. The prisoners refused to be searched. The prison authorities requested the assistance of gendarmes who were a security presence. The court accepted the version of the plaintiffs that they were then attacked by the prison staff and gendarmes using truncheons and wooden planks.
The court held that if physical force is employed against prisoners other than that which was made strictly necessary, then this use of force diminishes the human dignity of the prisoners and is in principle a violation of Article 3 of the ECHR. The court further held that disobedience on the part of prisoners could possibly lead to the intervention of security forces which may in turn lead to violence and bloodshed. However, when prison authorities request the assistance of external security forces there should independent monitoring of the action taken by those external agencies in order to ensure that the force employed is proportional.
In these circumstances, it was held that the treatment received by the prisoners was not proportional and therefore that there had been excessive use of force. Consequently the conduct of the state amounted to a violation of Article 3 ECHR.
3.2.1.3 FAILURE TO TRAIN STAFF
There is a general duty upon the state to ensure that the prisoners in their care are properly cared for. Part of this duty includes the duty to employ and train staff properly.
This has given rise to “failure to train” cases in the USA. In these cases the court held that a violation of the prisoner’s fundamental rights by inadequately trained staff is actionable where the state’s failure to train staff is so serious that it demonstrates a
542 (31866/96 ) (10-10-2000) http://sim.law.uu.nl/SIM/CaseLaw/Hof.nsf/d0cd2c2c444d8d94c12567c 2002de990/d5ca103a41c07b25c125697e00484d87?OpenDocument (accessed 28-06-2013).
114 deliberate indifference to the constitutionally protected interests of the prisoner. This would be a “but for” argument, namely, that but for the failure to train the staff the violation would not have occurred.
Thus in City of Canton v Harris543 the prison authorities failed to properly train staff in the use of force and the prisoner was injured by a staff member’s use of excessive force. This was found to constitute an Eighth Amendment violation. The failure to train in basic medical procedures can also give rise to such a claim.544
The position in Europe is similar to that in the United States of America. Prisons are the responsibility of public authorities separate from the military, police or criminal investigation services. They are to be managed in a manner which recognises the obligation to treat all prisoners with humanity and with respect for the inherent dignity of the human person.545 Therefore prison staff should be carefully selected, properly trained, both at the outset and on a continuing basis, paid as professional workers and have a status that civil society can respect. Prison staff should possess integrity, humanity, professional capacity and personal suitability for the complex work that they will be required to do.546 Furthermore, prior to commencing duty, prison staff should be given a course of training in their general and specific duties and be required to pass theoretical and practical tests. Prison staff should throughout their career maintain and improve their knowledge and professional capacity by attending courses of in-service training.547
Although there are no cases in Europe specifically dealing with this issue, there are cases which indicate that liability may arise from a failure to train staff. In Çoşelav v Turkey548 the prisoner was suicidal. He had attempted to take his own life on several occasions. The prison staff placed him in a cell where the bars on the windows were of such a height that he was able to hang himself using the sheets from his bed. In
543 489 U.S. 378 (1989). 544 Brock v Warren County 713 F. Supp. 238 (E.D. Tenn., 1989). 545 EPR Rule 72. 546 EPR Rule 76. 547 EPR Rule 81. 548 (Application no. 1413/07) (9-10-2012)
115 his final hours the prisoner had harmed himself by hitting his head against the walls. Despite this conduct, the prisoner was left in his cell on his own, without any supervision. The court found that the authorities were indifferent to the suffering of the prisoner.549
The ECtHR found that the staff were negligent and that they should have kept watch over him to ensure that he did not take his own life. Accordingly the court found that there was a violation of Article 2 of the ECHR which protects the right to life and awarded compensation to the family. Although not expressly mentioned, the failure of the staff may have been attributable to inadequate training on how to deal with a prisoner with suicidal tendencies.
3.2.2 CONDITIONS OF DETENTION
3.2.2.1 OVERCROWDING
Overcrowding has two important aspects to it. The first is the condition of overcrowding itself, that is, too many prisoners are detained in a particular prison. The second aspect regards the consequences of the overcrowding.
Regarding the first of these, overcrowding per se can be measured in various ways. The first is the square meterage of floorspace allocated to each prisoner. There are recognized norms in this regard. In Europe, for example, the minimum is four square meters per prisoner in shared accommodation and 6 square meters for a prisoner in a single cell. These norms however, differ from country to country.550 This measure is not desirable and generally avoided by the courts because overcrowding involves a multi-dimensional assessment. Proper prison regimes are required to provide programs for rehabilitation, health care, the safety of prisoners as well as the sta and the public, kitchen and sanitary facilities, visiting and facilities for work, educatioffn and outdoor exercise according to certain standards. The prisons are also required to provide sufficient private space and not cause excessive social density. The
549 Par 65. 550 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 131.
116 inability of the prison to provide conditions in accordance with these standards fails the “totality-of conditions” test for overcrowding.551
The consequences of overcrowding, that is, the second aspect referred to above, cause the greatest violations of human rights in the prison environment since it has severe implications on the pressure which is placed on cooking resources, hygiene and sewage facilities, work, education, medical and other resources and on the space available for visits and this in turn has further consequences on the physical and psychological well-being of prisoners.552 This will be dealt with in more detail below.
The extent of overcrowding is not only affected by the crime rate in a society but is also a product of the operation of the criminal justice system.553
In the USA the law governing overcrowding is governed by the Eighth Amendment to the Constitution of the United States of America which prohibits cruel and unusual punishments. There is no prohibition on cruel and unusual treatment, as discussed above.
The law is articulated in Wilson v Seiter554 which states that prior to an action of this nature being successful, two requirements must be met. Firstly, the conditions of detention must be such so as to deprive the prisoner of an identifiable human need. Secondly, the officials responsible for the conditions must be deliberately indifferent to the prisoner’s needs. This position was consistent with the finding in Estelle v Gamble,555 Rhodes v Chapman556 and Whitley v Albers.557
551 Albrecht “Prison Overcrowding - Finding Effective Solutions: Strategies and Best Practices against Overcrowding in Correctional Facilities” (2012) Vol 43 in Forschung aktuell Max-Planck- Inst. für Ausländisches und Internat. Strafrecht 67; Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 131. 552 “Commentary on Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules” (2006) 71; Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 131. 553 “Commentary on Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules” (2006) 71. 554 501 U.S. 294 (1991). 555 429 U.S. 97 (1976). 556 452 U.S. 337 (1981). 557 475 US 312 (1986).
117
Wilson v Seiter558 involved a complaint of overcrowding, excessive noise, insufficient locker storage space, inadequate heating and cooling and ventilation, unclean and inadequate restrooms, unsanitary dining facilities and food preparation, and the housing of mentally and physically ill prisoners together with the general prison population. However, the decision did not deal with the substance of the matter but was only concerned with the technical point of whether it was necessary for the prisoner to prove that the prison officials were deliberately indifferent to the plight of the prisoner. The court held that this was necessary.
The court established a two-prong test to determine whether prison-related punishments were cruel and unusual. Firstly, the objective component requires conditions be sufficiently serious and secondly pose a substantial risk of serious harm. The subjective component on the part of the prison officials requires showing that prison officials were firstly deliberately indifferent and secondly, knew of and disregarded the harm to prisoners.
In Rhodes v Chapman559 prisoners in the Southern Ohio Correctional Facility argued that the lodging of two prisoners in a single cell ("double celling") constituted cruel and unusual punishment. This was rejected by the court which held that at most the argument amounts to a theory that double celling inflicts pain.560 However, it does not constitute the unnecessary and wanton infliction of pain that violates the Eighth Amendment.561 The Constitution, it was held, does not mandate comfortable prisons562 and only those deprivations denying the minimal civilized measure of life's necessities563 are sufficiently grave to form the basis of an Eighth Amendment violation.
Furthermore, the court held that it was not enough to look at the totality of conditions in which the prisoner was detained. What had to be established was a deprivation of
558 501 U.S. 294 (1991). 559 452 U.S. 337 (1981). 560 348-349. 561 346. 562 349. 563 347.
118 at least a single, identifiable human need, for example, food, warmth, exercise or a low cell temperature at night combined with a failure to issue blankets. It was not enough to show generally bad conditions although it was possible that if certain conditions in combination could be demonstrated to reinforce one another so as to show the deprivation of a specific need, that would be sufficient.
The courts have also adopted what has been referred to as the soft, broad hands-off approach to prison management,564 that is, that the court will generally not interfere in the management of the prison since it lacks the necessary expertise but it will intervene when fundamental rights have been violated by poor prison conditions.565
566 In Bell v Woolfish the prisoners instituted a class action on various constitutional grounds against several prison authority practices. Firstly, the prisoners challenged the practice of housing two prisoners in rooms originally intended for single occupancy (“double-bunking”). Secondly, the “publisher only” rule which prohibited prisoners from receiving hard-cover books that were not mailed directly from publishers, book clubs, or bookstores. Thirdly, the prohibition against prisoners receiving packages of food and personal items from outside the prison. Fourthly, the practice of body cavity searches of prisoners following visits from persons outside the prison. Finally, they challenged the practice that pretrial prisoners were required to remain outside their rooms during inspections.
The court held that the test to be applied in determining whether conditions of detention are unconstitutional is whether the purpose of the condition is punitive. The court is obliged to consider a wide range of factors such as whether it promotes the traditional aims of punishment, whether it is applied with punitive intent or whether the condition traditionally constituted a form of punishment, such as removal of citizenship. The court further refined the test and held that if a particular condition of pretrial detention is reasonably related to a legitimate governmental objective, it does not amount to punishment but if a restriction or condition is not reasonably related to a legitimate goal, that is, it is arbitrary or purposeless, then the court
564 Vida infra. 565 Bell v Woolfish 441 US 520 (1979). 566 441 US 520 (1979).
119 permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon prisoners. Double bunking was found not to violate this prohibition.567
Similarly, the "publisher only" rule, body cavity searches, the prohibition against the receipt of packages, nor the room search rule violate any constitutional guarantees.568
Although this particular matter deals with the pre-trial detainees and violations of the Fifth Amendment569 the reasoning applies equally to convicted prisoners. They have a right not to be treated in a manner that is unlawful and onerous such that it adds punitive measures to those meted out by the court at time of punishment.570
Therefore, double bunking, by itself, does not violate any constitutional guarantees in the United States of America even though it significantly reduces an individual prisoner’s space.
The procedural position changed in 1996 with the introduction of the Prison Litigation Reform Act 1995 18 U. S. C. §3626 which changed the manner in which prison litigation was conducted. Prisoners are precluded from being able to litigate about conditions of imprisonment until they have exhausted all administrative remedies. The Act also seeks to limit the type of relief that can be granted in that defendants (the prison authorities) may return to court every two years to request that a decree be terminated and then the court is obliged to terminate it unless the prisoners can show that constitutional violations continue. Population caps can still be ordered but only by a three judge court after less intrusive forms of relief have been tried and failed. The powers of special masters are limited and their fees and costs are to be paid by the court, not by the prison authorities.571
567 Pp. 441 U. S. 541-543. 568 Pp. 441 U. S. 544-562. 569 The Fifth Amendment protects due process, that is, that no person shall be guilty of an offence without due process of law. 570 Palmer Constitutional Rights of Prisoners 74. 571 Palmer Constitutional Rights of Prisoners 392; Collins Jails and the Constitution An Overview 55.
120
In 2010 the Supreme Court was called upon to decide an appeal from district courts for the Eastern and Northern districts of California in Brown, Governor of California, et al. v Plata et al.572 This was an appeal from a population cap order issued by a three judge court in terms of the PLRA after less intrusive forms of relief had been tried and failed. There were two classes of case involved in the appeal. The first was prisoners with serious mental disorders and the second was prisoners with serious medical conditions.
California’s prisons operated at 200% of capacity for 11 years. The consequences of this were that prisoners with serious mental illnesses did not receive adequate care. A special master was appointed by the district court to oversee remedial efforts. He reported, after 12 years, that the mental health care in California’s prisons was deteriorating due to overcrowding. The State of California conceded constitutional violations (Eighth Amendment) in failing to provide proper medical treatment but undertook to remedy those conditions. The court subsequently issued an order directing that these conditions be remedied. This was not done. Three years later the conditions persisted as did the overcrowding so the district court concluded that the only remedy for unconstitutional medical and mental health care was to reduce overcrowding. A three-judge court was convened as contemplated in the PLRA. After a hearing, the court issued a population cap order directing that crowding be reduced to 137.5% of design capacity. The court ordered the state to formulate a compliance plan and submit it for court approval. It was this decision that was taken on appeal.
The court found that overcrowding was the primary cause of the violation. The increasing prison population severely impacted on the provision of care. There were high vacancy rates for medical and mental health staff and the state did not have sufficient funds to hire the necessary staff. Thus, even if there were professionals who were prepared to do the work, the state could not pay them. Mentally ill prisoners were being most severely impacted since they were housed in administrative segregation for extended periods while waiting for transfer to scarce
572 (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2-03-2013).
121 mental health treatment beds. Prisoners were required to wait for extremely long periods prior to seeing a doctor because there was a backlog of up to 700 prisoners. Thus, there was an excess demand and shortage of supply of medical facilities and treatment but in addition overcrowding was also found to cause unsafe and unsanitary conditions. Overcrowding also promoted unrest and violence that could cause prisoners with latent mental illnesses to worsen and develop overt symptoms. The increase in violence and poor ratio of prison guards to prisoners resulted in increased reliance on lockdowns to keep order. Lockdowns bring with them other problems such as lack of exercise time which impacts health and further delays in providing effective delivery of care. Overcrowding also impacted reception centres which had to receive, process and categorise prisoners. Since the prisons were having to process 140,000 new or returning prisoners annually, some of the prisoners spent their entire period of incarceration at the reception centre which was not designed to house or care for prisoners. The court accepted the testimony of various experts who confirmed that the primary cause of the constitutional violations was overcrowding.573
The court further found that there was no possibility that California could build sufficient prisons to address the crisis since the state had severe financial problems. The lack of funds further meant that professional medical staff could not be hired nor accommodated due to lack of space. Even attempts to build sufficient prisons to address the crisis would be unsuccessful because of the time necessary to do so. Thus, without a population reduction no remedy would be possible.574
The PLRA requires that reductions in prison population do not adversely affect public safety. The court found that the statistical evidence showed that prison populations had been reduced without affecting public safety in some Californian counties, several states in the United States of America, and in Canada. There are various strategies for reducing overcrowding such as good time credits and diverting low-risk offenders to community programs. The nature of the order permitted the state to choose the manner in which it would comply with the order. In this regard it could
573 19 - 24. 574 29 – 33.
122 transfer prisoners to other states, move them between prisons or even increase capacity through a building programme.575
Some of the consequences of the overcrowding that the court found included an increased and substantial risk of transmission of infectious illness and a suicide rate approaching an average of one per week.576 Prisoners with serious mental illness did not receive minimal or adequate care. A shortage of treatment beds resulted in suicidal prisoners being held for prolonged periods in telephone-booth sized cages without toilets. One prisoner was observed being held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic because there was nowhere else to put him.577
Other prisoners awaiting treatment were often kept for months in administrative segregation, enduring harsh and isolated conditions. The waiting times for mental health care could be as high as 12 months resulting in a high number of suicides. Prisoners with physical health problems also did not receive proper or timeous care, resulting in 200% overcrowding in clinical space. In one prison, up to 50 sick prisoners were held together in a twelve- by twenty-foot cage for up to five hours awaiting treatment. Insufficient staff also caused delays in treatment. For example, a prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist. Another prisoner with constant and extreme chest pain died after an 8- hour delay in evaluation by a doctor. A prisoner died of testicular cancer after a doctor failed to diagnose testicular cancer after 17 months of testicular pain.578The court cited numerous other examples of failure to treat timeously or properly due to extreme demands placed on the medical/mental health system by overcrowding.579
The court further found that overcrowding, combined with staffing shortages, created a culture of cynicism, fear and despair which made it very difficult to hire and retain qualified and competent staff. The situation resulted in a daily operation of the health system in a state of crisis which severely compromised remedial programs.
575 37 – 41. 576 5. 577 Ibid. 578 6 – 7. 579 10.
123 Overcrowding had other consequences including an increased incidence of infectious disease, increased prison violence and greater reliance by prison officials on lockdowns.580
The court therefore confirmed a population cap ordering the state of California to reduce overcrowding from 200% to 137.5% of capacity and held that to do so would not compromise public safety but improve it.
The position in Europe is that overcrowding is to be rejected. The CPT has adopted the view that overcrowding per se is a violation of fundamental rights.581 The Council of Ministers has similarly adopted Recommendation No. R (99) 22 concerning prison overcrowding and prison population inflation. This recommendation advocates the importance of ultima ratio principle, namely, that the deprivation of liberty should only be used for the most serious offences. Reductionist strategies should be applied to restrict the detention of both untried and sentenced prisoners. Persons convicted of crimes should preferably be given alternative sentences that do not entail imprisonment. Other aspects of the reductionist strategies include de-criminalising or re-classifying certain offences so that they do not carry penalties of imprisonment.582
The Council of Europe, as a human rights based body, has 47 members including eastern European countries. The greatest number of violations of human rights in the context of prisons have been found in the eastern European countries, and in particular Russia.583
In Ananyev and Others v. Russia584 the applicants had been detained in a remand prison for three years. The cell in which the prisoner was kept measured fifteen square meters 15m2 and accommodated twenty other prisoners, but was only
580 11. 581 CPT 2nd General Report [CPT/inf (92)3] § 46; CPT 11th General report [CPT/inf (2001)16] § 13. 582 “Commentary on Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules” (2006) 40, Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 88 onwards. 583 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 30. 584 (nos. 42525/07 and 60800/08) (2012) (Chamber)
124 equipped with thirteen sleeping places.585 In their cells the applicants had been given less than 2.5 m2 of personal space and the number of prisoners substantially exceeded the number of sleeping places.586
The court was called upon to decide whether there had been a breach of Article 3 of the ECHR. The court held that in the context of deprivation of liberty for conduct to breach Article 3, the suffering and humiliation involved must go beyond the inevitable element of suffering and humiliation connected with imprisonment. The state must ensure that a person is imprisoned in conditions which are compatible with respect for human dignity, that the manner and method of imprisonment the must not subject the prisoner to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured.587
In determining whether or not there was overcrowding the court adopted a “totality-of conditions” test and did not only consider square meterage. The court held that where there was a challenge to conditions of detention on account of the lack of personal space, the court has to consider three elements, namely, whether each prisoner has an individual sleeping place in the cell, whether he has at least three square meters of floor space and whether the overall surface of the cell allows the prisoner to move freely between the furniture items.588
However, even if those minimum criteria are met, then the court has to determine whether other aspects of the physical conditions of detention are sufficient. If they are not present, then there is still a breach of Article 3. These other elements include access to outdoor exercise, natural light or air, availability of ventilation, adequacy of heating arrangements, the possibility of using the toilet in private, and compliance with basic sanitary and hygienic requirements.589
585 Par 135. 586 Par 138. 587 Par 141; Popov v Russia, no. 26853/04, § 208, 13 July 2006. 588 Par 48. 589 Par 149.
125 Therefore, even if the personal area per prisoner is consistent with the minimum floor area, lack of ventilation and lighting can result in a finding that Article 3 was breached.590
In this case the prisoners remained inside their cells for 23 hours per day and were permitted only one-hour per day for outdoor exercise. The prisoners also ate their meals and used the toilet in those cramped conditions.591The court found that the applicants had been subjected to inhuman and degrading treatment in violation of Article 3 of the Convention. The court then went on to find that these problems were systemic problems in Russia since there were other judgments of the court in which similar violations had been found. In addition there were still 250 similar complaints pending against Russia.
Accordingly the court issued a pilot judgment.592 The court noted that the cause of the problem was overcrowding which in turn was caused by undue delays and inefficiencies in Russia’s court system as well as problems with the prisons themselves including insufficient number of remand prisons, their antiquity and poor state of repair, misallocation of resources, and a lack of transparency in prison management.593
The court emphasized the reductionist principle for remand prisoners and held that remand in custody must be the exception rather than the norm and only as a measure of last resort.594 The court also made an interim order pending the remedy of the underlying problems which were to go into effect immediately. The order included that each remand centre be assessed in order to determine what its capacity should be and then grant the prison authorities the power to refuse to accept prisoners beyond capacity.595 The court also directed that legal remedies, both
590 Vlasov v Russia, no. 78146/01 § 84 12 June 2008; Trepashkin v Russia, no. 36898/03 § 94 19 July 2007. 591 Paras 153 – 160. 592 This is an order similar to a South African mandamus, save that there is continued oversight with an effective return date upon which the progress is monitored. 593 Par 191. 594 Par 197, McKay v the United Kingdom [GC], no. 543/03, § 41, ECHR 2006‑X. 595 Par 205.
126 injunctive and compensatory, for human rights breaches, be put in place since these did not exist in Russia.596
Like Russia, Italy is also a member of the Council of Europe and therefore the ECtHR also decides matters relating to breaches of the ECHR referred to it from Italy. In the matter of Torreggiani and Others v. Italy597 the court found that prisoners were detained in overcrowded conditions where 3 prisoners had to share an area of 9m2, thus giving each one a living area of 3m2 and furthermore there was a lack of hot water and adequate lighting in the cells. The court ordered a pilot judgment and damages.
It found that a living space of less than 3.0 m2 combined with an ambient temperature of 28 degrees centigrade, was confirmed as a violation of Article 3 by the European Court of Human Rights598 in that it exceeded the unavoidable level of suffering inherent in imprisonment.
3.2.2.2 FAILURE TO PROVIDE REHABILITATIVE PROGRAMMES
In the United States of America it has been held that there is no right to rehabilitative treatment since the failure to provide that treatment would not constitute cruel and unusual punishment. The court stated that this is a social policy question to be resolved by the legislature.599
However, when determining whether the totality of the conditions of detention are unconstitutional, the courts will consider any conditions of detention that fall short of what is constitutionally acceptable, whether the prison authorities are rehabilitating the prisoners and finally, whether meaningful rehabilitative opportunities are provided.600 Similarly, when deciding the “public safety” aspect of the PLRA
596 Paras 221 – 231. 597 (application no. 43517/09) (2013) http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001- 115860 (accessed 26-03-2013). 598 Mandic and Jovic v Slovenia (nos. 5774/10 and 5985/10) and Štrucl and Others v Slovenia (nos. 903/10, 6003/10 and 6544/10) (2012) < http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-107139> (accessed 26-03-2013). 599 Padgett v Stein 406 F. Supp. 287 (M.D. Pa. 1976). 600 Holt v Starver , 309 F. Supp. 362 (ed. Ark, 1970).
127 population cap in Brown, Governor Of California, et al v Plata et al601 the criminogenic impact of other constitutional violations was relevant, that is, the failure of the prisons to rehabilitate the prisoners and further to expose the prisoners to conditions of detention that increase the likelihood of recidivism.
Where the detention of the prisoner is specifically for treatment, then there is an obligation to treat the prisoner. Thus, in New York State Assn for Retard Ch., Inc v Carey the mental patients who had been civilly confined had a constitutional right to treatment regardless of whether their confinement was voluntary or involuntary. Where the prisoner is an involuntarily committed retarded person, then the prisoner, under the due process of the Fourteenth Amendment has a constitutionally protected right to treatment and to adequate training.602 Juveniles who have been convicted of an offense and adjudged to be delinquent have a constitutionally protected right to rehabilitative treatment since the purpose of their incarceration is to rehabilitate them in order to facilitate their reintegration into the community.603 The incarceration of sex offenders, often for indefinite periods, is for the express purpose of rehabilitation and therefore the prisoners have a right to rehabilitative treatment.604
Therefore, it has been argued in the USA that where the rationale for imprisonment is rehabilitation, then the failure to provide programmes will constitute a violation if the state fails to commit resources for this purpose.605
However, when considering sentencing, American courts are bound to apply the Sentencing Reform Act which was introduced in the United States of America in 1984 and which established an independent Sentencing Commission giving certain guidelines. This Act was upheld as constitutional by the United States Supreme Court in Mistretta v United States.606 The court accepted that rehabilitation should not be a consideration in sentencing because the rehabilitation model was outmoded and that it was an unobtainable goal in regard to punishment.
601 (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2-03-2013). 602 O’Connor v Donaldson 422 U.S. 563 (1975). 603 Morales v Turman 430 U.S. 322 (1977). 604 People v Feagle 14 Cal.3d 338 y; Ohlinger v Watson 652 F.2d 775 (9th Cir.1980). 605 Palmer Constitutional Rights of Prisoners 252. 606 488 U.S. 361 (1989).
128
Although there are no cases directly in this matter, European Prison Rules place a clear obligation on the contracting states to provide rehabilitation programmes.
Rule 102 of the European Prison Rules provides that the prison shall be designed to enable the prisoners to lead a responsible and crime-free life.607 The manner in which this is to be achieved is set out in Rule 103 which provides that the regime for sentenced prisoners shall commence as soon as someone has been admitted to prison as a sentenced prisoner.608 The prison authorities are to draw up reports for sentenced prisoners about their personal situations, the proposed sentence plans for each of them and the strategy for preparation for their release.609 The prisoners are to be involved in this process610 which include work, education, other activities and preparation for release.611 Social work, medical and psychological care may also be included in the regimes for sentenced prisoners.612 Further aspects of the sentence plans include restorative justice and prison leave.613 The rule therefore seeks to create opportunities for offenders to lead crime-free lives.614
3.2.2.3 CELL CONDITIONS
There is a duty upon the state to provide the prisoner with conditions of detention that are fit for safe human habitation, based on the principle that prisoners are in prison as punishment and not for punishment. Therefore, deprivation of liberty and self- determination are the punishment itself and the conditions of imprisonment should not be such as to make imprisonment more afflictive.
607 EPR Rule 102.1. 608 EPR Rule 103.1. 609 EPR Rule 103.2. 610 EPR Rule 103.3. 611 EPR Rule 103.4. 612 EPR Rule 103.5. 613 EPR Rule 103.6 and Rule 103.7. 614 “Commentary on Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules" (2006) 96.
129 In the USA the courts have also found that there is a duty upon the state to provide physical conditions of imprisonment that do not compromise the health of the prisoner.
In Brock v. Warren County615 a prisoner was kept in a jail under very hot conditions. Humidity was high because prisoners turned on showers to attempt to bring down the temperature. The air-conditioners did not work because there were insufficient funds to maintain and run them. Despite complaints and a nurse’s suggestion that the prisoner be moved, he was not moved. Eventually he collapsed but was still not moved because the single staff member in charge had no assistant and also had no medical training. The prisoner was eventually moved to hospital but died of heatstroke a few days later.616
The court found the prison staff to have been deliberately indifferent to the prisoner’s serious health needs,617 both by ignoring warnings and failing to provide staff with training. The court accordingly found an Eighth Amendment violation and ordered damages.
In Gates v Collier618 the court found that the conditions of imprisonment were very poor. These included grossly inadequate health care, inadequate housing, hygiene conditions that compromised health, punishments that included being forced to drink milk of magnesia, being handcuffed to fences and being shot at. The security was maintained by fellow trusted prisoners, selected by favouritism, and provided with firearms. These trusted prisoners were involved in beatings, loan sharking, extortion and shooting other prisoners. An Eighth Amendment violation was found to exist.
In Helling v. McKinney619 the court held that passive or second-hand smoke exposure can successfully give rise to claims for detention in cruel and unusual punishment and therefore constitutional violations.
615 713 F. Supp. 238 (E.D. Tenn., 1989). 616 III. Conclusion. 617 I. Findings of Fact par 7. 618 501 F.2d 1291 (5th Cir., 1975). 619 509 U.S. 25 (1993).
130 In Jordan v. Fitzharris620 the prisoner was detained naked in a strip cell with light for only 15 minutes per day. The toilet barely functioned and there was no water for cleaning and no mattress, only a straw mat. The court held that the conditions of detention constituted a violation of the Eighth Amendment of the constitution.
In Sinclair v Henderson621 prisoners were kept in their cells that were 6m2 for 23 hours and 15 minutes per day. In the 45 minutes they were out of their cells, they were permitted to go down the corridor to shower, wash their clothes and get exercise. The prisoners lived and ate in a cell where the toilet facilities were located. These toilets usually leaked and some were constantly bubbling over. The water which the prisoners had to drink was contaminated with rust and it stained everything it touched. The prisoners were fed from a food cart that was usually filthy and often insects, cockroaches or human hair was found in the food. For several months hundreds of small roaches were found nesting in the same bread box from which the prisoners were served because these bread boxes were used week after week, without cleaning, thus creating a haven for cockroaches.622
The matter before the court was on a point of exception, which is not relevant, but the court held that the conditions of detention could constitute cruel and unusual punishment and therefore would constitute a violation of the Eighth Amendment of the constitution.623
In Europe the position is similar. In the matter of Kalashnikov v. Russia 624 there were 24 prisoners in a cell that measured 17 m2 and three prisoners to every bunk with the result that the prisoners slept in shifts. The conditions of detention were very poor: the cell light and television were never turned off making proper sleep impossible; the toilet was in view of guards and cell mates; meals were taken within one metre of the toilet; there was no ventilation and it was very hot in summer and very cold in winter;
620 257 F. Supp. 674 (1966). 621 331 F. Supp. 1123 (E.D. La., 1971). 622 Par 3. 623 Par 6. 624 (no. 47095/99) (2002) < http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003- 587422-591161> (accessed 26-03-2013).
131 there were heavy smokers in the cell so consequently the applicant became a passive smoker; and finally there were numerous cockroaches and ants in the cell.
The court noted that the norm for a detention cell was 7m2 per prisoner and these particular conditions were extremely crowded. The court found, that despite an absence of an intention to humiliate the prisoner, there had been a violation of Article 3 in that the conditions were degrading and that the mental suffering that the prisoner had experienced caused him to be humiliated and debased.
A violation of Article 3 of the ECHR was also found to have occurred when a prisoner who suffered from osteoporosis was detained in a 10m2 cell that lacked proper ventilation, sanitation, water supply, bedding, clothing and food.625
Where a prisoner who was suffering from chronic hepatitis and hypertension was compelled to share 35 beds with 120 other prisoners, many of whom were heavy smokers, the ECtHR also found an Article 3 violation.626 The court held that there was a duty on the state not to subject prisoners to hardships that exceeded the unavoidable level of suffering inherent in detention and that the prison authorities were also under an obligation to ensure that the prisoner’s health was not compromised.
The exposure to tobacco smoke and the delay in provision of medical treatment have also been found to be Article 3 violations, that is, as being cruel, inhuman or degrading treatment or punishment.627
The legal position is similar in Africa. In Organisation Mondiale Contre la Torture and Others v Rwanda (2000)628 the Commission was required to decide on a number of violations related to arbitrary arrests and summary executions that had occurred in
625 Modârcă v Moldova (no. 14437/05) (2007) < https://wcd.coe.int/ViewDoc.jsp?id=1131475&Site=COE> (accessed 27-03-2013). 626 Florea v Romania (no. 37186/03) (2010) < http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/233813e697620022c1256864005232b7/83ff6f5c7501 4d78c1257797002d1151?OpenDocument> (accessed 27-03-2013). 627 Pavalache v Romania(Chamber) (no. 38746/03) (2011) < http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/233813e697620022c1256864005232b7/4a870a5efc7 9b430c125792d002a1034?OpenDocument>. 628 AHRLR 282 (ACHPR 1996).
132 Rwanda. The complaint alleged that over 1 000 people, including women, children and the aged were held in deplorable conditions. Article 5 of the Banjul Charter provides that every individual shall have the right to the respect and the dignity inherent in a human being and to the recognition of his legal status. It further provides that all forms of exploitation and degradation of man, particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment or treatment shall be prohibited. The details of the conditions of detention are not articulated in the judgment but the commission found that the conditions of detention in which, inter alia, children, women and the aged were held violated their physical and psychological integrity and therefore constituted a violation of Article 5.629
In Achuthan and Another (on behalf of Banda and Others) v Malawi630 the complaint concerned the conditions of prisoners who had been sentenced to life imprisonment. They were held in almost complete solitary confinement, given extremely poor food, inadequate medical care, shackled for long periods of time within their cells and prevented from seeing each other for years. Amnesty International described the conditions of detention of these and other prisoners who had been held for similar political crimes as extremely poor as they included overcrowding and torture consisting of beatings and electric shocks.631 The commission found that the conditions of detention constituted violations of Article 5 of the African Charter.632
In Civil Liberties Organisation v Nigeria633 the prisoners were held in military detention places, not in regular prisons and were deprived of access to their lawyers and families. The prisoners were held in dark cells, given insufficient food and no medicine or medical attention.634 Depriving the prisoner of the right to see his family was held to be a psychological trauma that would be difficult to justify, and could, in certain circumstance, by itself, constitute inhuman treatment. However, the conditions of detention further included deprivation of light, insufficient food and lack
629 Paras 25 and 26. 630 (2000) AHRLR 144 (ACHPR 1995). 631 Paras 3 and 4. 632 Par 13. 633 (2000) AHRLR 243 (ACHPR 1999). 634 Par 5.
133 of access to medicine or medical care. These conditions cumulatively were held to constitute violations of Article 5.635
In Malawi African Association and Others v Mauritania (2000)636 the commission was called upon to decide upon a number of violations of the rights of hundreds of people. This study will only focus on those violations that relate to conditions of detention. The complainants alleged that hundreds of people were detained in connection with political unrest in 1989 and 1990. A wave of arrests and detention followed in 1990.637
During their time in prison, prisoners were beaten, forced to make statements, denied the opportunity of sleeping and held in solitary confinement.638 They were often not fed, kept in chains and locked up in overpopulated cells lacking in hygiene and access to medical care. Some of the prisoners were burnt and buried in sand and left to die a slow death. During their imprisonment certain of the prisoners had electrical shocks administered to their genital organs and they had weights tied to them. Other torture included the prisoner’s heads being plunged into water to the point of provoking suffocation and pepper being smeared on their eyes. Some prisoners were permanently kept in small, dark or underground cells which got very cold at night.639 Inside and outside prisons the authorities forced prisoners into the so-called “jaguar” position as a form of torture. Prisoners were also beaten and their bodies burnt with various implements. Certain of the women prisoners were raped. The commission found that the conditions of detention constituted a violation of Article 5 of the charter.640
In Huri-Laws v Nigeria641 the complainant alleged that the prisoner was detained in a sordid and dirty cell under inhuman and degrading conditions. The prisoner was denied medical attention and access to his family and lawyer. He was also denied
635 Par 27. 636 AHRLR 149 (ACHPR 2000). 637 Par 114. 638 Par 115. 639 Par 116. 640 Paras 117 and 118. 641 (2000) AHRLR 273 (ACHPR 2000).
134 access to journals, newspapers and books as well as being deprived of contact with the outside world and the conditions of detention were described as health- threatening.642
The commission referred to Principle 1 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment of 1988 which provides that all persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person. The commission also referred to principle 6 of those principles which provides that no person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment and that no circumstance whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment.
The commission held that the prohibition of torture, cruel, inhuman or degrading treatment or punishment is absolute and no derogation is justifiable.643 In this regard the commission also referred to decisions of the ECtHR which supported that view. The commission therefore held that the conditions of detention constituted a breach of Article 5 of the Charter.644
In Kachingwe and Others v The Minister of Home Affairs and Others645 the two complainants were detained in police holding cells. The conditions of detention included the following: the cell was filthy as human excrement and urine collected in an open toilet bowl causing the prisoner much distress; the toilet bowl was not partitioned off from the rest of the cell and therefore there was no privacy; the cell was unhygienic as there was no toilet paper, no soap, no running water and no shower; the cell had no windows and therefore there was no natural light; there was no lighting in the cell and therefore at sunset the occupants were in the dark all the time; the prisoner was required to be barefoot in the cell that was filthy and this in spite of the low temperatures in the cell; there was no bedding in the cell; there was
642 Par 8. 643 Par 40. 644 Paras 40, 41. 645 (2005) AHRLR 228 (ZwSC 2005).
135 no clean drinking water; the prisoner was forced to wear one layer of clothing in spite of the low temperature in the cell; the prisoners were allowed out of their cell into the fenced enclosure for about 10 minutes per day and one of the prisoners complained that while he was imprisoned he received no food and the police cells were never cleaned; 5 prisoners were kept in a prison that measured 3 metres wide and 8 metres long.646
The court considered decisions from various jurisdictions regarding what constituted imprisonment in conditions that were degrading and inhuman. The court referred to Kalashnikov v Russia647 and Hilaire, Constantine and Benjamin et al v Trinidad and Tobago648 in which similar conditions of detention constituted degrading and inhuman conditions of detention.649The court held that these conditions of detention were in violation of section 15(1) of the Constitution of Zimbabwe and that the authorities were directed to take immediate measures to ensure that the holding cells at the relevant police stations have toilets that are screened off from the living area, with flushing mechanisms from within the cells, wash-basins and toilet paper.650
In Titiahonjo v Cameroon (2007)651 the complainant was the wife of a person who was suspected of belonging to a secessionist organization. The police assaulted him with an iron bar and then arrested and imprisoned him. Once incarcerated the prisoner was beaten and forced to sleep on the bare floor naked. He was beaten on the soles of his feet and on his head. As a result of these beatings he was unable to stand. He was not fed whilst in custody and when his wife brought him food she was not permitted to hand it to him. The police subsequently ignored an order by the prosecuting authorities to release the prisoner. The police then physically and psychologically tortured the prisoner, inter alia, by advising him that his wife had given birth to twins that he would never see. The police advised him that while he
646 Paras 16 - 24. 647 (2003) 36 EHRR 34. 648 Inter-American Court of Human Rights Series C No 94 (21 June 2002), the Inter-American Court of Human Rights. 649 Paras 51 and 55. 650 Par 73. 651 AHRLR 29 (HRC 2007).
136 was in prison he would have to find his own supplies but that, in any event, they were going to kill him.652
He was transferred to Bafoussam prison which was rife with various diseases including meningitis, cholera and cerebral malaria. These diseases claimed the lives of 15 prisoners between 10 September and 15 September 2000. The prison cells were unventilated and were infested with bedbugs and mosquitoes.653
On the morning of 14 September 2000 the prisoner complained of a stomach ache and asked for medication. This was not given to him because the guard on duty had no key for the cell. The prisoner continued to call for help throughout the day. When the cell was finally opened late that night the prisoner was dead. No post mortem examination was permitted by the state.654
The Human Rights Committee, acting under Article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights held that Cameroon contravened Article 6(1), Article 7, Article 9(1), (2), (3) and (4) of the Covenant and Articles 6 and 7 read together with Article 2(3) of the Covenant. These are the rights to life, liberty and freedom from cruel, inhuman or degrading treatment or punishment.
In Zimbabwe prisoners have a constitutional right to humane conditions of detention. In Conjwayo v Minister of Justice, Legal and Parliamentary affairs and Others655 the prisoner was detained in a cell 4,6m by 1,42m under constant supervision. There were no windows, but there was a mesh for observation. The prisoner was confined inside for 23½ hours every weekday and 24 hours a day on weekends and public holidays.656 The Court held, inter alia, that these conditions constituted the infliction of unnecessary suffering657 and furthermore constituted a violation of section 15 of
652 Par 2. 653 Par 2. 654 Ibid. 655 1992 (2) SA 56 (ZS). 656 59F to G. 657 65H.
137 the Zimbabwean Constitution which prohibited torture or inhuman or degrading punishment or other such treatment.
In Zimbabwe the courts will grant redress to prisoners whose prison cell conditions constitute torture or inhuman or degrading punishment.658
3.2.2.4 CONTACT WITH THE COMMUNITY AND ACCESS TO PRISONS
In the United States of America the general rule is that there is no inherent, absolute constitutional right to visits to prisoners, whether contact or non-contact.659
The approach adopted by the courts is that of a “hands-off” approach to prison management. The right to visit is not regarded as a constitutional issue but rather one of prison management in which the courts will not lightly interfere.660 Those challenges that have been mounted have argued that the limitation of visitation rights constitutes cruel and unusual punishment. The courts have rejected this on the grounds that such limitations were related to, and supportive of, legitimate penological interests, such as security.661 The test to be employed is that set out in Turner v Safley.662
There are exceptions where the state has a policy of permitting visitation. Thus, in Agron v Montanye663 the right to visit was limited for disciplinary reasons, which in this case was a form of punishment for refusing to shave. The court set aside the decision of the prison authorities because of a pre-existing policy of permitting visitors.
The European position is substantially different from that in the United States of America. The difference is rooted in the value that European law places upon the
658 Kachingwe and Others v The Minister of Home Affairs and Others (2005) AHRLR 228 (ZwSC 2005). 659 Palmer Constitutional Rights of Prisoners 39, 41; Block v Rutherford 468 U.S. 576 (1984). 660 Palmer Constitutional Rights of Prisoners 39. 661 Overton v Bazzetta 539 U.S. 126 (2003). 662 482 U.S. 78 (1987) vida supra. 663 Agron v Montanye,392 F.Supp. 454 (W.D.N.Y. 1975).
138 social re-integration of the offender. European Prison Rule 24 expressly provides for a right to visitation. This view is also supported by that of the CPT which has reported that it is important for the prisoner to have contact with the outside world. There are three reasons for the maintenance of family ties and other community ties, namely, such contact facilitates the re-integration of the prisoner into the community after his release, it helps to ensure that the power of prison officials is not abused, that is, that the prisoner is not exposed to inhuman or degrading treatment, and finally it is a means of giving expression to other fundamental rights, such as the right to family life and the right to freedom of expression.664
The most important aspect of the right of contact with the community is the right to a family life, enshrined in Article 8 of the ECHR. Article 8 provides that everyone has the right to respect for his private and family life, his home and his correspondence.665 However, this right may be limited in a manner which is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.666 Where there is an unjustified restriction upon this right, it will constitute a violation of this fundamental right.667
In Piechowicz v Poland,668 in the ECtHR, the prisoner had been charged with a variety of crimes including robbery, money laundering and drug smuggling. He was classified as a “dangerous detainee” which entailed a particularly strict prison security regime which restricted, inter alia, his contact with his family during his detention.669
664 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 213, 214. 665 Art 8.1. 666 Art 8.2. 667 Piechowicz v Poland (application no. 20071/07) (2012)
139 The applicant’s contact with his son, his wife and his mother had been severely restricted and on many occasions this contact had been completely denied. The court held that any measure depriving a person of his liberty entails inherent limitations on his private and family life. However, it is an essential part of a prisoner’s right to respect for family life that the authorities enable him or assist him to maintain contact with his close family.
Limitations that restrict the number of family visits or impose supervision of those visits may be justified by the nature of the offence and the subsequent subjection of the prisoner to a special prison regime. Arrangements of this nature constitute an interference with the prisoner’s rights under Article 8. These limitations are however not necessarily in breach of that provision. The limitation may be justifiable if it is in accordance with the law, is justified by the grounds set forth in Article 8.2 and necessary in a democratic society. “In accordance with the law” means compliance with the domestic law of the contracting country as well as with the law embodied in the ECHR. Regarding the necessity that the limitation be “necessary in a democratic society”, the court held that this means it must address a pressing social need and must remain proportionate to the legitimate aim pursued. The onus in this regard is on the country seeking to justify the existence of the limitation.670
The court held that the prolonged restrictions on the applicant’s contact with his common-law wife and son were excessive and could not be justified as necessary in a democratic society and accordingly the court found that there had been a violation of Article 8 of the Convention.671
Article 8 has been interpreted as providing for a right to found a family. In Dickson v United Kingdom672 the ECtHR permitted a prisoner serving a life sentence to employ a procedure for artificial insemination of his wife which included sending his sperm out of the prison.
670 Par 212. 671 Par 222. 672 [GC] 4 December 2007 § 74.
140 3.3 HEALTH AND MENTAL HEALTH
3.3.1 GENERAL
Prison authorities have a duty to care for prisoners and ensure that their health is not compromised. Furthermore, there is an obligation upon the authorities not to cause distress to prisoners that exceed the unavoidable level of suffering inherent in detention. This is because deprivation of liberty is the punishment for the crime committed and prison is not a place for additional punishment to be administered.
The nature of the duty and some of what it entails has been canvassed above673 including examination on admission, segregation if necessary, the nature of ongoing treatment, the level of competence and number of medical staff etc. The treatment shall include specialist treatment and psychiatric treatment.674
In the United States of America prisoners with disabilities receive statutory protection under the Americans with Disabilities Act of 1990.675 This Act has four sections, namely, employment; state and local government transportation and public services; public accommodation and telecommunications. The government and other public agencies may not deny service to persons with disabilities. Thus, prison facilities, services, and communications must be accessible to persons with disabilities and no one can be prevented from using a program, service or activity because of their disability. Public places, including prisons, may not discriminate on the basis of disability and all amenities must be made accessible.
Insofar as general health care is concerned the courts have held that because the state has removed the prisoner’s ability to arrange his own treatment, if that state fails to provide treatment, it may amount to torture.676 In the USA, in order for the failure to provide treatment to breach the Eighth Amendment, there must be
673 Vida supra. 674 UNSMR 22. 675 Yeskey v Commonwealth of Pennsylvania 524 U.S. 206 (1998). 676 Estelle v Gamble supra.
141 deliberate indifference to the serious medical needs of the prisoner that constitutes unnecessary and wanton infliction of pain.677
Some examples of where Eighth Amendment violations have been found by the courts are as follows. Firstly, provision of only one doctor for an 1800 bed prison.678 Secondly, after a prisoner’s ear was cut off in a fight, he retrieved the ear and requested prison staff to sew it back on. The staff refused and threw it away stating the prisoner did not need it.679 Thirdly, the healthcare system for an entire prison system was found to be in violation of the Eighth Amendment. The failings of the healthcare system included withholding treatment as punishment and 900 prisoners receiving medical care from one medical assistant who was assisted by untrained prisoners. Unsupervised prisoners performed minor surgery, gave injections and took x-rays. Prisoners were generally neglected for lengthy periods. This included taking twenty days to treat a prisoner’s maggot infested wound and allowing an old man who was incontinent and also a stroke victim to sit on a bench all day until he collapsed and broke his leg. The leg had to be amputated after which he died.680
In Europe there is a duty to provide medical care including specialized and psychiatric care. The CPT has reported that an inadequate level of health care, if it falls below the minimum required, will constitute cruel, inhuman or degrading treatment.681 There are several guiding principles in this regard. These are the right to adequate health care, confidential access to competent health care professionals, equivalence of care, professional independence, informed consent and the right of prisoners to preventative health care.682
677 Ibid. 678 Gates v Collier, 501 F.2d 1291 (5th Cir., 1975). 679 Williams v Vincent, 508 F.2d 541 (2d Cir., 1974). 680 Newman v Alabama 503 F.2d 1320 (5th Cir., 1974). 681 CPT 3rd General Report [CPT/Inf (93) 12] §30. 682 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 1620 – 175.
142 The mental and physical health of patients can suffer from intentionally inflicted harm, that is torture, or it can occur as a result of poor conditions of imprisonment, such as overcrowding.683
In Alver v Estonia684 the medical treatment was barely adequate but the health of the prisoner suffered because of poor conditions of imprisonment. The ECtHR found this to be degrading treatment.
The EComHR685 expressed the view in Hurtado v Switzerland686 that under Article 3 of the ECHR the contracting state has a positive duty to protect the well-being of prisoners.
In Kudla v Poland687 the state was aware of the suicidal state of the prisoner but this condition was not caused by the conditions of imprisonment and the state did provide sufficient psychiatric and medical care. The court found that there was no violation of the ECHR. But treating a psychiatric patient as a normal prisoner by placing them with the general population, and failing to give them proper medication, constitutes a violation of Article 3.688
A violation of Article 2689 and of Article 3 was found when a prisoner committed suicide following a failure to transfer him to a psychiatric facility. The prison authorities had failed to supervise his medication regime although they knew of his psychiatric problems and the psychiatric risk.690
683 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 149. 684 8 November 2005 § 56. 685 The European Commission of Human Rights. 686 [EComRH] 8 July 1993 §79. 687 (no. 30210/96) (2000) http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003- 68478-68946 (accessed 27-03-2013). 688 Dybeku v Albania (41153/06 )(2007) (Chamber) < http://echr.ketse.com/doc/41153.06-en- 20071218/> (accessed 23-06-2013). 689 Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 690 Renolde v France (5608/05) (2008) (Chamber) < http://echr.ketse.com/doc/5608.05-en- 20081016/> (accessed 23-06-2013).
143 Prisoners with HIV/AIDS pose a particular problem in that they are especially susceptible to other communicable diseases and often require specialized medical regimes and hospital treatment. Where these specialized needs are not provided for the state will be found to be in violation of Article 3.691 The same considerations apply to other serious medical conditions such as tuberculosis692 and cancer.693
Prisoners who suffer from physical disabilities also require special arrangements to be made to accommodate their disabilities. Where a state imprisons a person suffering from a disability and fails to discharge its duty to make special provisions for that person and as a result they suffer cruel, inhuman or degrading treatment or punishment, then the court will find that there has been a breach of Article 3.694
The state has a duty to identify prisoners who suffer from mental problems and provide appropriate medication and conditions of imprisonment.695
3.3.2 FORCED MEDICATION AND FORCED FEEDING
In the USA, when a mentally ill prisoner presents a danger to himself or others he may be involuntarily medicated without the need for a judicial hearing. However there has to be a properly structured enquiry.696
691 Khudobin v Russia (Chamber) (59696/00) (2006)
144
In Europe there is also a requirement that procedural safeguards be in place before forced feeding is employed. However, if it is done, it must be done in a humane manner that is not degrading. Thus, in Nevmerzhitsky v Ukraine697 a sane hunger striker was force fed with the use of a mouth opener and a rubber tube which was forced into his food canal. The court held that this was a violation of Article 3 of the convention.
3.4 GOOD ORDER
3.4.1 SEARCHES
The disciplinary and grievance mechanisms in prison are created in order to maintain or restore order and safety in the prison. This is primarily for the safety of prisoners. Discipline and order shall be maintained in a manner that ensures safe custody and a well-ordered community life, but with no more restrictions than are necessary.
3.4.1.1 GENERAL
Searches are governed by the Fourth Amendment to the constitution of the United States of America which guarantees the right of the people to be secure in their persons, houses and effects against unreasonable searches and seizures.
The general rule in the United States of America is that prison staff require no justification for conducting cell searches and prisoners do not have the right to be present during the searches.698
The general rule in Europe is that it may be necessary in order to maintain good order, such as preventing inter-prisoner violence, for searches to be conducted. However, searches that infringe upon the dignity of prisoner are prohibited if they
696 Washington v Harper 494 U.S. 210 (1990). 697 (no. 54825/00) (2005)< http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003- 448669-449428 > (accessed26-03-2013). 698 Block v Rutherford 468 U.S. 576 (1984).
145 amount to torture or inhuman or degrading treatment or punishment in contravention of Article 3 of the ECHR. Furthermore, searches, by their nature, infringe individual privacy and therefore violate Article 8 of the ECHR. The interference with the right is however justifiable in terms of Article 8.2 of the ECHR. This position is confirmed by rule 54 of the EPR.
3.4.1.2 CROSS GENDER SEARCHES
In the United States of America the court found that male staff conducting a pat search of women prisoners constitutes cruel and unusual punishment.699 The privacy of women has been held to a higher standard than that of men in the United States of America and they have a greater expectation not to be seen naked by members of the opposite sex.700 In Europe, where a prisoner was ordered to strip naked, squat and have his genitalia examined in the presence of female staff in order to humiliate him, the court found that this was degrading treatment in violation of Article 3 of the ECHR.701
3.4.1.3 STRIP SEARCHES AND INVASIVE SEARCHES
In the United States of America there is a duty on prison staff to show that significant amounts of contraband, undetectable in a pat search, would enter the prison via persons arrested for minor offenses before they would be entitled to conduct a strip search of these prisoners as a matter of course. The courts require that “reasonable suspicion” exist before being entitled to strip search an arrestee. A reasonable suspicion could be founded upon prior criminal record, the reason for the arrest or the behavior of the prisoner.702 In New York, data showed that there was no basis for believing that contraband would be smuggled into the prison and therefore prison strip searches were found to be unconstitutional.703
699 Jordan v Gardner, 986 F.2d 1521 (9th Cir.1993). 700 Everson v Michigan Department of Corrections, 232 F.Supp.2d 864 (E.D. Mich., 2002; Colman v Vasquez, 142 F.Supp.2d 226 (D. Conn., 2001). 701 Valašinas v Lithuania (no. 44558/98) (2001) < http://en.tm.lt/dok/Valasinas_v__Lithuania_JUDG.pdf> (accessed 26-03-2013). 702 Weber v Dell 804 F.2d 796 (2d Cir., 1986). 703 Dodge v County of Orange 204 F.R.D. 65 S.D.N.Y., 2002.
146
In Bell v Wolfish704 the court held that a prisoner could be strip searched without any particular reason after contact visits or trips outside the prison. In Europe the position is different. In Jalloh v Germany705 the state administered an involuntary emetic in hospital to have the prisoner regurgitate bags containing drugs he was believed to have swallowed when arrested. The court held that this was a violation of Article 3 since this method had led to deaths in the past and there were other ways to obtain the evidence.
In Iwańczuk v Poland706 the prisoner was made to undress and undergo a body search. He stripped down to his underpants and was ridiculed by the guards about his body. The court found this to be degrading treatment in violation of Article 3. The court found that there may be circumstances in which such strip searches are justified but then they must be conducted in an appropriate manner. There were no security concerns in this matter and the prison staff’s conduct was calculated to provoke feelings of humiliation and inferiority. The requirement that there be a legitimate security concern prior to a strip search being allowed was confirmed in El Shennawy v France.707
Where strip searches are conducted in any one country, there should be a consistent policy across different prisons in that country. Thus, in Frérot v. France708 where the nature of the search differed from prison to prison for the same prisoner, including anal cavity searches in certain prisons and not in others, the searches, because of their arbitrary character, were held to be a violation of Article 3.
704 441 U.S. 520 (1979). 705 (no. 54810/00) (2006) GC
147 3.4.2 DISCIPLINARY PROCESS
3.4.2.1 HEARINGS AND DUE PROCESS
The Fourteenth Amendment in the USA has been interpreted to provide for the protection of prisoners by way of due process of law. This is important in the context of disciplinary proceedings against a prisoner.
In the USA the due process protections for prisoners are limited. Disciplinary hearings are not required where the maximum penalty is less than 30 days in segregation. However, a disciplinary hearing must be held where the possible penalty includes loss of good time credits or if it imposes an atypical and significant hardship on the prisoner in relation to the ordinary incidents of prison life.709 The procedural requirements include:710 i. The prisoner has a right to be present at the hearing. ii. The hearing is to be conducted by an impartial hearing officer. iii. There should be notice of at least 24 hours and should include the nature of the charges faced. iv. The prisoner has a right to call witnesses unless to do so would be unduly hazardous to prison safety or correctional goals. v. After the hearing the prisoner is entitled to written reasons for the decision. vi. The prisoner has no right to legal representation. vii. The prisoner has no right to cross examine or to confront witnesses. viii. Only if the prisoner is illiterate or the issues are complex or the prisoner is unable to fully comprehend the issues is he entitled to assistance.
In Europe there are very clear and specific rules laid down for hearings regarding disciplinary breaches and the nature of the penalties that may be imposed.711 The prison authorities are discouraged from using disciplinary measures and should rather use mechanisms of restoration and mediation to resolve disputes with and
709 Sandin v Conner 515 U.S. 472 (1995). 710 Wolff v McDonnell supra. 711 EPR Rule 56 to 60.
148 among prisoners. National law determines the acts or omissions by prisoners that constitute disciplinary offences, the procedures to be followed at disciplinary hearings, the types and duration of punishment that may be imposed, the authority competent to impose such punishment and the appeal process.712
Prisoners charged with disciplinary offences shall be informed promptly, in a language which they understand and in detail, of the nature of the accusations against them. They shall have adequate time and facilities for the preparation of their defence and be allowed to defend themselves in person or through legal assistance when the interests of justice so require. They shall be entitled to call witnesses and to examine them. An interpreter shall be provided if necessary.713
Any punishment imposed after conviction shall be in accordance with national law and the severity of the punishment shall be proportionate to the offence. Collective punishments, corporal punishment, punishment by placing in a dark cell, and all other forms of inhuman or degrading punishment shall be prohibited. Punishment shall not include total prohibition on family contact. An appeal process shall be created.714
In Europe Article 6 of the ECHR provides for the right to a fair trial. Article 4.1 of Protocol 7 to the ECHR provides that no one shall be liable or be tried or punished again in criminal proceedings where they have already been finally convicted or acquitted of the same offence previously (the “double jeopardy” rule). Where a prisoner is charged and convicted of a disciplinary infraction, then the question arises whether or not he can subsequently be re-charged in a criminal court. Further it also raises the question whether the Article 6 protections apply in disciplinary proceedings.
715 In Campbell and Fell v United Kindgom the prisoner had been charged, in disciplinary proceedings, with mutiny. In addition to being a disciplinary offence, this was also regarded as a serious criminal offence. The prisoner was found guilty and
712 EPR Rule 57. 713 EPR Rule 59. 714 EPR Rule 60. 715 28 June 1984.
149 his punishment was the loss of 450 days remission. Thus, his sentence was not extended but, the remission that he would have received, but for the offence, was lost and in effect he would be imprisoned for a longer period than which he initially anticipated.
The court considered three factors in deciding whether the matter was disciplinary or criminal. The first question was whether the domestic law categorized it as disciplinary or criminal, the second question was the nature of the offence and the final factor was the nature and severity of the punishment. The court found that although domestic law categorized it as disciplinary716 the offence was regarded by the legal system as an especially serious one.717 Finally, the penalty was the most important factor since it was a severe one. The court held that it was a criminal offence and accordingly the Article 6 protections apply.718 However, because the Article 6 protections had not been granted to the prisoner at the time of hearing, because the proceedings had been considered by the government to be disciplinary, the ECtHR found that there had been a violation of Article 6.
Thereafter, in Ezeh and Connors v United Kingdom719 the ECtHR regarded even a minor loss of remission as sufficiently serious to warrant the protections of Article 6. In the matter of Young v United Kingdom720 the ECtHR held that even an additional three days added onto the sentence of a prisoner for refusing to obey an instruction warranted Article 6 protection.
In Sergey Zolotukin v Russia721 the ECtHR held that where a prisoner had received two days additional detention as a result of disciplinary proceedings, the subsequent criminal trial for the same offence was in breach of the “double jeopardy” provisions of Article 4.1 of Protocol 7.
716 Par 70. 717 Par 71. 718 Ibid. 719 [GC] 9 October 2003. 720 16 January 2007, §2007. 721 7 June 2007.
150 3.4.2.2 SOLITARY CONFINEMENT
As a general rule it is not desirable to employ solitary confinement and efforts are being made to abolish it both as a form of punishment and as a means of increasing security.722
It has been held in both the USA and Europe that solitary confinement can, in certain circumstances, be impermisible.
In the USA solitary confinement is not per se unconstitutional.723 However, certain conditions of confinement combined with solitary confinement may be found to violate the Eighth Amendment, and these would include deprivation of all means of personal hygiene such as soap, water, towels, toilet paper, toothbrush or clothing.724
In Europe an Article 3 violation of the ECHR was found to exist where the prisoner had no contact with other prisoners, no news from the outside world, was prohibited from sending or receiving mail or from having contact with his family and was deprived of food and proper cleaning facilities.725 Article 3 violations were found to exist when a prisoner was held for several years, in isolation, without sufficient 726 727 mental or physical stimulation. In X v. Turkey a homosexual prisoner was put in solitary confinement for 8 months following complaints from him about acts of intimidation and bullying by other prisoners. The ECtHR found that he had been placed in solitary confinement because of his sexual orientation and not for his protection. The court held that this was a violation of Article 14 which prohibits discrimination.
722 UN Basic Principles for the Treatment of Prisoners, Art 7. 723 Sostre v Mc Ginnis, 442 F.2d 178 (2d Cir. 1971). 724 Wright v Mc Mann 387 F.2d 519 (2d Cir. 1967). 725 Ilascu and Others v Moldova and Russia (Grand Chamber) (application no. 48787/99) (2002)
151 3.5 DEFENCE OF INSUFFICIENT RESOURCES
When faced with legal proceedings contending that the conditions of imprisonment fall below the minimum required in order not to violate the fundamental rights of a prisoner, the state may raise the defence that it has insufficient resources to provide for the needs of the prisoner.
In the United States of America this defence has been tried and has failed.728 However, in Wilson v Seiter729 the court held that firstly, the conditions of detention must deprive a prisoner of an identifiable human need and secondly, the officials responsible for the conditions must be deliberately indifferent to the prisoner's needs. This mental element may be absent where there are insufficient resources and therefore this decision seems to open the door to that defence in principle.
In Europe the legal position is that a lack of resources is not a defence to imprisonment in conditions that infringe prisoner’s human rights.730 This is a logical corollary to the absolute prohibition on torture and cruel, inhuman or degrading treatment or punishment. This view is also supported by case law. If the contracting state has insufficient resources to honour their obligations to prisoners in terms of the ECHR, the remedy is to employ other forms of punishment such as community sanctions.731
This defence was raised in the matter of Kachingwe and Others v The Minister of Home Affairs and Others732 where the Zimbabwe government pleaded scarcity of resources for the failure to provide better facilities in the holding cells.733 The court found that despite the government raising this defence, which the complainants did not dispute, there was still a violation of the absolute prohibition on inhuman and degrading treatment.
728 Gates v Collier 501 F.2d 1291 (5th Cir., 1975). 729 501 U.S. 294 (1991). 730 EPR Rule 5. 731 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 103. 732 (2005) AHRLR 228 (ZwSC 2005). 733 Paras 24 and 37.
152
3.6 REMEDIES
3.6.1 ACCESS TO COURT
Although there is a general right to a criminal hearing prior to being sentenced, there is also a further right to have disputes regarding treatment or punishment in prison to be decided upon by a court once the necessary procedural conditions have been met.
In the USA this protection is guaranteed by the Fourteenth Amendment. The courts in the United States of America have gone beyond merely permitting a prisoner to bring an action, but in addition, they have ruled that prison authorities are under an obligation to assist the prisoners in bringing such an action so that their access to court can be meaningful and this includes the obligation to provide a properly stocked legal library or some type of legal assistance, for example, a paralegal or an attorney.734
This protection also appears in the European Convention in Article 6 which provides that in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The fundamental right to legal aid however only extends to criminal matters and not civil matters.735
3.6.2 LEGAL REMEDIES
When the fundamental rights of prisoners have been unjustifiably violated the prisoner should have a remedy.
There are a number of solutions that have been attempted by courts to remedy prison conditions and these include damages,736 directing that prisons no longer
734 Bounds v Smith 430 U.S. 817 (1977); Lewis v Casey 518 U.S. 343 (1996). 735 Art 6(3)(c). 736 X v Turkey (no. 24626/09) (2012).
153 accept prisoners once capacity has been reached,737 population caps738 (also known as bursting provisions), an order correcting the violation, the appointment of special masters either to a particular prison or a whole prison system,739 pilot judgments,740 the release of prisoners741 or potentially even raising taxes to provide funds to remedy conditions.742
These remedies are graded, in the sense that if the mischief has already been remedied prior to the legal action by the prisoner, then usually a damages order will suffice.743 If the mischief is ongoing, then a mandamus type interdict is appropriate but if the problem is systemic or if the mischief is simply not remedied by the authorities, then more drastic steps should be ordered such as a pilot judgment744 or the appointment of a master. It is only after these fail that the courts will issue release orders or population caps.745This is the position both in the United States of America746 and in Europe.747
The mere unjustified violation of a fundamental right gives rise to a claim in money in both the USA748 and in Europe.749
In Botswana the mere violation of a fundamental right allows for constitutional damages to be awarded by the court. This remedy is specified in the constitution and is separate and distinct from any common law remedy that the prisoner may be
737 Ananyev and Others v Russia (nos. 42525/07 and 60800/08) (2012) (Chamber). 738 Brown v Plata (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2- 03-2013). 739 Ibid. 740 Torreggiani and Others v Italy (application no. 43517/09) (2013) http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115860 (accessed 26-03-2013). This would be similar to a structured interdict in South Africa. 741 Stone v San Francisco 968 F.2d 850 (9th Cir., 1992). 742 Missouri v Jenkins 495 U.S. 33 (1990). 743 X v Turkey (no. 24626/09) (2012). 744 Ananyev and Others v Russia (nos. 42525/07 and 60800/08) (2012) (Chamber). 745 Brown v Plata (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2- 03-2013). 746 Prison Litigation Reform Act. 747 Ananyev and Others v Russia (nos. 42525/07 and 60800/08) (2012) (Chamber)
154 entitled to. This claim is founded upon section 18(1) of the Constitution of Botswana which provides that a person whose fundamental rights have been contravened or are likely to be contravened, without prejudice to any other action with respect to the same matter which is lawfully available, may apply to the High Court for redress.750
In Kachingwe and Others v The Minister of Home Affairs and Others751 the court issued an interdict ordering that conditions in the offending cells be remedied.
4. CONCLUSION
In terms of the South African Constitution, international legal obligations bind the state once it has been approved by resolution in both the National Assembly and the National Council of Provinces.752 When interpreting the bill of rights, a court, tribunal or forum must consider international law and may consider foreign law.753 Furthermore, customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.754 When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.755
As a result of the importance of international and foreign law the preamble to the Correctional Services Act provides that the legislation itself recognizes international principles on correctional matters. These principles on correctional matters are discussed above and they inform the Correctional Services Act. Furthermore, the principles of foreign law discussed above will be of value to a court interpreting fundamental rights in the context of prison law.
750 Oatile v Attorney General (CVHLB-001835-07) 2010 BWHC 10 (2 March 2010) http://www.saflii.org/cgi-bin/disp.pl?file=bw/cases/BWHC/2010/10.html&query=prison (accessed 04 July 2013. 751 (2005) AHRLR 228 (ZwSC 2005). 752 S 37(4)(1); s 231 (subject to exceptions set forth in the balance of the section). 753 S 39. 754 S 232. 755 S 233.
155 CHAPTER 4 THE SOUTH AFRICAN COMMON LAW OF PRISONER RIGHTS
1. Introduction ...... 156 2. Torture or treatment or punishment in a cruel, inhuman or degrading manner ...... 158 3. All prisoners shall be detained in a safe environment in which good order prevails ...... 163 3.1 Duty of care generally ...... 163 3.2 Duty to provide a safe environment ...... 166 3.3 Duty to provide adequate health care ...... 170 4. Residuum principle ...... 177 5. Prison staff ...... 178 6. Insufficient material resources of the state ...... 180 7. The principle of legality...... 189 8. Ubuntu ...... 190 9. The right to lawful, reasonable and procedurally fair administrative action ...... 192 9.1 The “hands off” approach to the administration of prisons ...... 195 9.2 Audi alteram partem rule ...... 204 9.3 The administrative official must apply his mind ...... 206 9.4 Administrative failures and damages ...... 207 9.5 Legitimate expectations ...... 207 10. Rehabilitation and re-integration ...... 208 11. Imprisonment is a punishment in and of itself ...... 209 12. Restrictions shall be the minimum necessary ...... 211 13. Proportionality ...... 212 14. Arbitrariness ...... 213 15. The beneficent state principle ...... 215 16. Prisoners’ avenues of protection, redress and remedies ...... 216 16.1 Damages ...... 216 16.2 Interdicts ...... 221 16.3 Declarations of invalidity ...... 226 16.4 The right to legal assistance ...... 227 17. The right to parole ...... 229 17.1 Non-medical parole ...... 229 17.2 Medical parole ...... 236 18. Limitation of rights ...... 238 18.1 Limitations that contravene the prohibition on torture, cruel, inhuman or degrading treatment or punishment ...... 240 18.2 Limitations that do not contravene the prohibition on cruel, inhuman or degrading treatment or punishment nor frustrate the purposes of punishment ...... 243 18.3 “Type of punishment” cases ...... 247 18.4 Limitation of rights when the limitation frustrates the purpose of punishment ...... 253 19. Conclusion ...... 254
1. INTRODUCTION
The South African Correctional Services Act has the object of changing the law governing the correctional system and giving effect to the Bill of Rights in the Constitution, 1996. It also recognizes the international principles on correctional
156 matters.756 It is not proposed to restate the Act here or to attempt to summarise it but rather to discuss the current common law position as regards prisoner rights.
The Chapter will begin by discussing the legal position regarding cruel, inhuman or degrading treatment or punishment in South Africa as this forms an important standard in assessing the treatment and conditions in which prisoners are kept.
A number of important principles exist in the context of prisoner rights and these will be studied. These principles include: the right of all prisoners to be detained in a safe environment in which good order prevails; the principle of legality; ubuntu; the right to lawful, reasonable and procedurally fair administrative action; the right to be treated in a manner that facilitates prisoner rehabilitation and re-integration; the right not to be subjected to additional punishment or maltreatment; the right to the minimum necessary restrictions; the Goldberg or residuum principle and the beneficent state principle.
The various principles of prison law both overlap and interact with each other but the courts have consistently dealt with them separately as these principles highlight the different aspects of prisoner rights.
When studying the right of all prisoners to be detained in a safe environment in which good order prevails, particular attention shall be paid to the general duty to care for prisoners, the duty to provide a safe environment and the duty to provide adequate health care as well as the role of prison staff.
When discussing the right to lawful, reasonable and procedurally fair administrative action, particular attention will be paid to the “hands off” approach to the administration of prisons, the audi alteram partem rule, the obligation of the administrative officials to apply their minds to decisions affecting prisoners, the importance of a prisoner’s legitimate expectations and the possibility of action for damages following an administrative failure.
756 111 of 1998, preamble.
157 The state has in several matters attempted to raise the defence that it has insufficient material resources to secure prisoner rights and this issue will also be discussed.
The possible remedies available to prisoners in the event of a violation of prisoner rights will be discussed with particular reference to damages, interdicts, declarations of invalidity and the right to legal assistance.
A fundamental issue when discussing prisoner rights is the creation of a theoretical framework that can be used to assess when a limitation of prisoner rights exceeds that which is constitutionally permissible. Imprisonment, by its nature, constitutes a limitation of the offender’s rights. The limitation is a form of punishment and therefore the purposes of punishment are also to be studied. A framework will be proposed that distinguishes between limitations that contravene the prohibition on torture or cruel, inhuman or degrading treatment or punishment and limitations that do not. The framework will also draw heavily upon the “type of punishment cases” and will consider the impact of limitations that frustrate the purpose of punishment.
As part of prisoner rights, the right to parole will be discussed including medical parole and non-medical parole.
The principles in this area of the law in many instances interact and overlap with each other. This will become apparent during the discussions but as an example, the residuum principle and the principle of legality may, to a certain degree, be seen as opposite sides of the same coin.
2. TORTURE OR TREATMENT OR PUNISHMENT IN A CRUEL, INHUMAN OR DEGRADING MANNER
Section 12(1) of the Constitution prohibits torture and treatment or punishment in a cruel, inhuman or degrading manner. As argued elsewhere757 there is no general table of non-derogable rights except in the context of states of emergency. South Africa’s international obligations however preclude any justification for torture and
757 See 15.1 below.
158 treatment or punishment in a cruel, inhuman or degrading manner.758 These international obligations were incurred after the decisions in S v Makwanyane759 and S v Williams760 which explains why the court in those matters was still obliged to consider whether or not the relevant types of punishment were justifiable even though they were found to be cruel, inhuman or degrading. This international obligation was embodied in the Prevention and Combating of Torture of Persons Act.761
Conditions of detention must not violate this prohibition.762 This is the primary principle underlying the Correctional Services Act763 and the accompanying regulations.764 The rights to life and dignity are the most important of all human rights, and the source from which all other fundamental rights flow.765
Two important cases have emerged in the context of the law relating to punishment. For the sake of convenience these have been labeled the “types of punishment” cases because each has found a particular type of punishment to be unconstitutional. The two cases in question are S v Makwanyane766 and S v Williams.767 In the former case the death penalty for non-treasonable offences was held to violate the prohibition on punishment in a cruel, inhuman or degrading manner and in the latter case the corporal punishment of juveniles was held to violate the prohibition on punishment in a cruel, inhuman or degrading manner. In both cases the court adopted the same approach, namely, whether the punishment in question violated a
758 ICCPR GA Res 2200A (XXI) of 16 December 1966, 21 UN GOAR Supp (No 16) 52, UN Doc A/6316 (1966), art 7 as read with art 4. 759 1995 (3) SA 391. 760 1995 (3) SA 632. 761 Act 13 of 2013. 762 Thukwane v Minister of Correctional Services and Others 2003 (1) SA 51 (T). 763 111 of 1998, Chapter III. 764 GN R 9739 in GG 35277 of 25-04-2012, Chapters II and III. 765 S v Makwanyane supra par 144. 766 1995 (3) SA 391. 767 1995 (3) SA 632.
159 particular right, or legal norm,768 and secondly whether the particular punishment was arbitrary.769
As opposed to the “type of punishment” cases referred to above, our courts have also found, in the context of imprisonment, that certain types of treatment of a prisoner violate the prohibition on torture or treatment or punishment in a cruel, inhuman or degrading manner.
Thus, in Du Plooy v Minister of Correctional Services and others770 the applicant who had been sentenced to fifteen years in prison for armed robbery was diagnosed with leukaemia prior to his committal to prison and given approximately three months to live. The care given in the prison was not the type of palliative care that he required. The court held that his continued detention of the prisoner constituted cruel, inhuman or degrading punishment and more particularly the court held that when looking at the life of an individual the manner of the individual’s death, as the final chapter of the drama of that life, was of great importance. Insofar as dying is an integral part of living, then as part of life, it is entitled to constitutional protection. The court then ordered that the prisoner be placed on parole.
In S v Likuwa771 it was held that minimum sentencing provisions per se are not unconstitutional but they may violate the prohibition against cruel, inhuman or degrading punishment contained in the constitution where the minimum sentence provision result is so startlingly or disturbingly inappropriate that it would have warranted interference on appeal.
In the Namibian case of Namunjepo and Others Commanding Officer, Windhoek Prison and Another772 certain prisoners had escaped and were then recaptured. These prisoners were placed in chains and leg irons and detained in those conditions
768 In Makwanyane see par 94; In S v Williams supra see par 50. 769 In Makwanyane see par 51 and 54 that canvass the arbitrary and capricious manner in which different offenders are treated differently; In S v Williams supra see par 45 where the severity of punishment is dependent upon the person administering it. 770 [2004] All SA 613. 771 1999 NR 151 at 156. 772 2000 (6) BCLR 671 (NmS).
160 for between five and six months. The question before the court was whether legislative provisions permitting the detention of prisoners while keeping them in mechanical restraints violated the constitutional guarantee preventing torture, cruel, inhuman or degrading treatment or punishment. The court found that detaining the prisoners in these conditions was unconstitutional.
Of importance in this matter is that the prohibition is to be read disjunctively; in other words, the prohibition is against torture, cruel treatment, cruel punishment, inhuman treatment, inhuman punishment, degrading treatment and degrading punishment. Furthermore, the court held that no limitation of these rights is permitted and therefore the state's obligation was absolute.
The court further emphasized that in order to decide whether or not there was a violation of the prohibition it must have regard to the contemporary norms, aspirations, expectations, sensitivities, moral standards, relevant established beliefs, social conditions, experiences and perceptions of the people as expressed in their national institutions and the Constitution as well as the consensus of values or emerging consensus in the civilised international community. The resultant value judgment which the court must make must be objectively articulated and identified.773
The disjunctive interpretation of the prohibition on torture or treatment or punishment in a cruel, inhuman or degrading manner was confirmed in S v Niemand.774 In this matter the court found that the incarceration of an offender who has been declared a habitual criminal for an indeterminate period as provided for in terms of section 65(4)(b)(iv) of the Correctional Services Act775 read with section 286 of the Criminal Procedure Act776 constitutes cruel, inhuman or degrading punishment.777
The court found that where the length of sentence was dependent upon the caprice of the executive778 (arbitrariness) the prisoner’s right to dignity was violated. It was
773 Paras 9, 10 ,11 and 12. 774 2001 (11) BCLR 1181 (CC). 775 111 of 1998. 776 51 of 1977. 777 Par 26. 778 Par 23.
161 this arbitrariness that infringed the dignity of the prisoner. Furthermore, the court found the indefinite sentence to be grossly disproportionate to the crime.
In Stanfield v Minister of Correctional Services and Others779 the court held that the continued detention of a prisoner who is terminally ill violates the prohibition against torture or treatment or punishment in a cruel, inhuman or degrading manner.780 The court held that all prisoners have a right not to be treated or punished in a cruel, inhuman or degrading way and have a right to conditions of detention that are consistent with human dignity including exercise, adequate accommodation, nutrition, reading material and medical treatment. Furthermore, in terms of the residuum principle, a sentenced prisoner retains all the basic rights and liberties of an ordinary citizen except those taken away by law, expressly or by implication, or those necessarily inconsistent with the circumstances in which he is imprisoned. The detention in circumstances where the terminally ill patient is not receiving adequate health care and medical treatment is unconstitutional and therefore the court ordered that the prisoner be released.
In the Zimbabwean matter of Blanchard and Others v Minister of Justice, Legal and Parliamentary Affairs and Others781 the plaintiffs were assaulted, beaten, tortured and as a result were in a state of shock and they were consequently suffering from mental and physical trauma. The prisoners had been placed in a maximum security prison where the cells were 4,5 meters long and 1,5 meters wide with no window but the lights were left on 24 hours per day. They were not able to communicate with each other and were stripped naked and shackled in leg irons at night. The court found that these conditions of detention violated the prohibition against cruel, inhuman or degrading treatment or punishment.
The detention in a cell in C-Max prison in Pretoria in solitary confinement for 23 hours a day was held to infringe the prisoner's fundamental rights.782
779 2003 (12) BCLR 1384 (C). 780 Par 88. 781 1999 (10) BCLR 1169 ZS. 782 Kruger v Minister of Correctional Services and Others (7117/02) 2005 ZAGPHC 24 (2 March 2005) SAFLII
162 An important aspect of the right to conditions of detention that do not violate the prohibition on cruel, inhuman or degrading punishment or treatment is the right to be detained in a safe environment in which good order prevails.
3. ALL PRISONERS SHALL BE DETAINED IN A SAFE ENVIRONMENT IN WHICH GOOD ORDER PREVAILS
3.1 DUTY OF CARE GENERALLY
The prisoner is owed a duty of care by the state when it deprives him of his liberty.783 This includes a duty to ensure the safety of the prisoner and also a duty to safeguard the health and welfare of the prisoner.784
Prison authorities shall create environments in which all prisoners can be safe and free from abuse and where all prisoners are able to interact without fear of assault or other violence, whether from staff or other prisoners785 and where the physical environment is safe.786
In the Namibian case of Paul Kennedy and Others v The Minister of Prisons and Correctional Services787 the dangers of poorly matched prisoners placed in communal cells were aptly illustrated as were the dangers of prison gangs. The plaintiffs in this matter had been severely injured after a gang fight broke out following a dispute about money. The matter is discussed more fully elsewhere in this
783 Correctional Services Act s 2(b). 784 UNSMR Art 27 South Africa, Correctional Services Act 111 of 1998 s 2(b). 785 Premininy v Russia (Application no. 44973/04) (2011)
163 research788 but in that matter the court found that prison officials had a duty to protect the personal security of the prisoners under their care and supervision and that the objectives of punishment would be frustrated if prisoners were subjected to institutionalized gangsterism,789 sexual abuse and violence.790
The court noted that a prison constitutes a captive environment from which the victims of such aberrational conduct cannot escape. This explains why the duty of protection is more onerous and more important. These abuses are to be addressed in the management approach of the prison authorities. The court further held that the failure to respect the dignity and personal safety and security of prisoners and the failure to create a rehabilitative environment within which a prisoner may serve his sentence would cause the prisons to fail as “correctional institutions”. These results would defeat the objectives that the courts and the penal system are supposed to achieve.
The duty of care for prisoners existed prior to the current constitutional dispensation. In Mtati v Minister of Justice791 the plaintiff was assaulted by a policeman whilst under guard by other policemen in the prison cells. The court held that the guard had been negligent in the discharge of his duty to protect Mtati from unlawful assault by firstly allowing the attacker into the cells and secondly by not stopping the assault.
In the matter of Moegamat Fatieg Jaftha v The Honourable Minister of Correctional Services792 the court accepted the general principle that a prisoner can institute action against the state for damages where he was assaulted by a fellow prisoner. The specific danger in this case was foreseen. The state had conceded the general principle that it had a duty to care for the plaintiff’s safe custody and his physical and psychological integrity. The court was required to decide whether there was negligence on the part of the defendant’s employees, that is, the relevant prison warders and/or other staff. The dispute concerned two prisoners who had already
788 Vida supra 789 S v Hanges supra. 790 The court relied upon Van Eden v Minister of Safety and Security supra; Carmichele v Minister of Safety and Security & Another supra and Minister van Polisie v Ewels supra. 791 1958 (1) SA 221 (A). 792 [2012] 2 All SA 286 (ECP).
164 been involved in a fight. Later they were both assaulted by warders. After being strip searched for weapons they were taken to single cells in order to keep them separate and later taken to the hospital section for treatment. They were then handed over to a nurse in the hospital section. The one prisoner, whilst being treated, grabbed a scalpel and when he left the treatment area he attacked the plaintiff with the scalpel. The perpetrator was then again assaulted by the warders.793
The court accepted the general principle that there is generally no liability for an omission. Liability can only arise if there is a duty to act and if there is culpability on the part of the person who failed to discharge that duty.794
The court found that there was a duty on the prison authorities to protect the prisoner from assault by a fellow prisoner since the attack was reasonably foreseeable. The court also found that the defendant’s employees had failed to take reasonable measures to avert such foreseeable harm. Various measures could have been taken including segregating the fighting prisoners since the prison did have the facilities for such segregation.795
In Mxolisi v Minister of Correctional Services796 a certain Chikoto was found to be assaulting several prisoners with a belt to which a lock was attached. Thus he was known to the prison officials as being a violent prisoner. The court found that once they were armed with this knowledge there was a duty to protect other prisoners from him. This duty included the use of restraints, warning other prisoners and conducting a proper search of the violent prisoner to ensure that he had no weapons. The prison staff failed to do any of the above and Chikoto had concealed a razor on his person which he used to assault and injure the plaintiff.797
793 Par 10. 794 Par 18. 795 Par 29. 796 (06/5172) [2008] ZAGPHC 107 (17 April 2008)
165 The court held that in terms of the Correctional Services Act,798 correctional officials must take such steps as are necessary to ensure the safe custody of every prisoner and maintain security and good order in every prison. The purpose of the correctional system is to contribute to maintaining and protecting a just, peaceful and safe society by detaining all prisoners in safe custody whilst ensuring their human dignity.799
The court referred to section 35(2)(e) of the Constitution in confirming that there was a duty to ensure safe custody of prisoners and the court also applied the residuum principle.800
The court further noted that the Constitution and the Bill of Rights entrenches the right to life, human dignity, freedom and security of a person and that there is a duty imposed on the state and all of its organs not to perform any act that infringes the rights enshrined in the Constitution. The State and its organs are obliged to provide appropriate protection to everyone through laws and structure designed to afford such protection.
The court awarded the plaintiff damages.
In addition to the general duty to ensure that all prisoners are detained in an environment in which good order prevails, the state also has a duty to provide a safe environment for the prisoners.
3.2 DUTY TO PROVIDE A SAFE ENVIRONMENT
The state imprisons prisoners in an environment which it created and controls. It has a duty to ensure that the environment is safe for prisoners.
The duty to provide a safe environment has many aspects and has been the basis for successful claims for passive or second hand smoke exposure in both Europe801 and
798 111 of 1998. 799 S 2 of Act 111 of 1998. 800 Par 39.
166 the USA802 on the basis that it constituted detention in cruel, inhuman and degrading conditions.
In South Africa in Pretorius v Minister of Correctional Services803 the applicants complained of continual radio broadcasts from 09h00 until 21h00 everyday of either Radio Metro or Radio Jacaranda. These stations were played at a preset volume that was approximately the same volume, or sound level, as is employed in a large office building. However, the applicants could not change the channel nor could they change the volume. As a result of this and other factors, the first applicant suffered a nervous breakdown. The applicants could also not consult with their legal representatives properly as a result of the noise. The prisoners were awaiting the finalisation of their trial and as such were not convicted prisoners. They were imprisoned in C-max prison in solitary confinement. The court held that the broadcasts constituted noise pollution which resulted in a physical condition called tinnitus which is a continual buzzing in the ears. It also leads to stress and irritability.
The court applied the residuum principle to this challenge and held that the applicants were entitled to their full constitutional rights not inconsistent with the court order permitting them to be held as prisoners in C-max prison in Pretoria and in solitary confinement. Furthermore, their rights to privacy must thus be respected as much as possible in the circumstances. This right includes the right to choose which radio and television programmes to listen or watch. The prisoner’s acoustic privacy includes the right not to have his personal space invaded by any broadcast to which he has not consented. Imprisonment, even awaiting trial, involves great inroads into prisoner's rights to personal space and undisturbed enjoyment of solitude or choice of company. However, this did not permit exposure to continual radio broadcasts that were unwanted, the volume of which the prisoner could not control. This was especially so where this impacted his health and his right to a fair trial (the prisoners
801 Pavalache v Romania (Chamber) (no. 38746/03) (2011) http://sim.law.uu.nl/SIM/CaseLaw/hof.nsf/233813e697620022c1256864005232b7/4a870a5efc7 9b430c125792d002a1034?OpenDocument. 802 Helling v. McKinney 509 U.S. 25 (1993) where the health issue involved an asthmatic. 803 2004 (2) SA 658 (T).
167 could not consult properly). The court thus ordered that the radio broadcasts be stopped and that the applicants could possess portable radios and batteries.804
In the matter of Kruger v Minister of Correctional Services and Others805 the plaintiff instituted action against the Minister for damages following his transfer to the C-Max super maximum prison facility in Pretoria. The decision to transfer the plaintiff was an administrative action. The claim was based on the loss of privileges which were occasioned by him being moved from the one facility where he enjoyed a number of privileges to the C-Max facility where he enjoyed very limited privileges.
The complaints were essentially that the Plaintiff was locked in solitary confinement for 23 hours per day and that there was a noise nuisance caused by a radio which was played for many hours per day.
The court then went on to elaborate on the modified “hands off” principle. This principle provides that generally the courts should adopt a broad “hands off” attitude towards matters of prison administration. The basis of this view is the original pro- executive view that prison administrators are responsible for securing their institutions against escape or unauthorised entry, for the preservation of internal order and discipline, and for rehabilitating the prisoners placed in their custody. These functions require, it is argued, expertise, comprehensive planning and a commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. The courts have taken the view that they are ill-equipped to deal with such problems. However, this view is subject to the limitation that a prison regulation or practice that offends a fundamental constitutional right cannot be permitted to persist. This modification finds its basis in the residuum principle. Thus, the court held, prison officials must be accorded latitude and understanding in the administration of prison affairs, and prisoners are necessarily subject to appropriate rules and regulations but it remains the continuing responsibility of courts to enforce constitutional rights of all persons, prisoners
804 Paras 39 and 43. 805 (7117/02) 2005 ZAGPHC 24 (2 March 2005) SAFLII
168 included.806
The court endorsed the principle of legality namely even those rights of prisoners which are restricted as necessary consequence or incarceration may only be limited if this is done by legislation, either expressly or by necessary implication. The restrictions must in addition, be formulated sufficiently narrowly to ensure that prisoners are not exposed to overbroad discretionary powers which deny them protection of the law.807
The court then considered whether or not the plaintiff, whilst at C-max, was subjected to conditions of detention that were inconsistent with human dignity.
The court employed as the primary tools of analysis the residuum principle and the Constitution’s values. The court then examined each complaint individually. Concerning the alleged noise and effect of the radio the court found that the plaintiff had not proved this. Regarding the complaint that he had no means or way of communicating with other prisoners, the court found he could speak to the prisoner in the next door cell and further that he could communicate whilst exercising for an hour a day and also whilst working as a librarian. Thus, this was not unreasonable and unlawful. The court held that keeping the plaintiff in solitary conferment for 23 hours per day did not accord with the principle of decency and may have infringed the plaintiff's fundamental rights. The final complaint by the plaintiff was that his right to privacy was invaded by being watched at all times by security guards who walked above his cell along a cat walk, including those times that he was taking a shower or in the toilet. The court held that this was acceptable since the prisoner was a flight risk and he could not show that he had ever complained about it before or that the guards had specifically singled him out for observation.808
The plaintiff's damages were alleged to have been caused by the defendant subjecting the plaintiff to conditions of detention that were inconsistent with human dignity. This constituted mental torture and trauma as well as being treatment and
806 Paras 25, 26 and 27. 807 Par 27. 808 Paras 34 to 38.
169 or punishment in a cruel, inhuman or degrading manner.
The court then considered whether or not the actions of the defendant could be said to have been the cause of the plaintiff’s alleged mental trauma, emotional stress, torture and consequent damages. In other words, was there a causal link between the defendants' alleged unlawful actions and the alleged mental trauma, emotional stress and the consequent damages suffered by the plaintiff?809
The court found that this link was not proved as the plaintiff was already unstable at the time of his admission to C-Max and had not made use of the social services in C-Max, such as psychologists and the like. In his latter failing he failed to mitigate his loss and the court dismissed his claim.810
3.3 DUTY TO PROVIDE ADEQUATE HEALTH CARE
The duty to protect a prisoner extends beyond protecting him from assaults from staff and other prisoners. It also extends to protecting his health by preventing his exposure to infectious disease.
This duty was explored in the matter of Minister of Correctional Services v Lee811 in which the plaintiff was arrested in November 1999 and remained in prison for a total period of four years before being acquitted and permanently released in September 2004. During this time the plaintiff contracted pulmonary tuberculosis. He claimed damages from the Minister of Correctional Services. His claim was based on the fact that he had contracted the disease whilst in prison and that the state had a duty to ensure that he did not contract the disease whilst in their care. He argued that the state had a duty to take reasonably adequate precautions against contagion.
The court held that South Africa has a high incidence of tuberculosis and it has been estimated that more than half the population has been infected by the disease at one time or another. Prisons provide an ideal environment for the transmission of the
809 Par 40. 810 Paras 41 and 49. 811 2012 (3) SA 617 (SCA).
170 disease, being dank and poorly ventilated whilst providing living conditions in close contact with those who are infected. The prisoner’s immune systems are often compromised by poor nutrition or other causes. The effective management of tuberculosis is relatively straightforward. The fundamental precautions involve proper screening and diagnosis to detect the disease, isolation of the carrier for so long as he or she is infectious and antibiotic treatment which generally lasts for approximately six months. This type of management regime will be effective if it is adhered to strictly and consistently, which requires adequate support staff.
The authorities at Pollsmoor prison were pertinently aware of the risk to prisoners of contracting tuberculosis and from about 1998 there was a gradual and continuing breakdown of health care in the prison, including the management of tuberculosis, largely as a result of insufficient qualified health care personnel. This is despite pleas by health care professionals for intervention and correction. These pleas were repeated to the inspecting judge, to prison authorities and even a parliamentary portfolio committee. Nothing came of these pleas other than to have one of the healthcare professionals who was pleading for intervention to be dismissed. The court found that there was no real TB management system in place and that the plaintiff had contracted TB during his stay in the correctional facility.812
The court held that section 12(1) of the Correctional Services Act813 1998 obliges prison authorities to provide adequate health care services based on the principles of primary care. This provision is also contained in section 35(2)(e) of the Constitution and Article 7 of the ICCPR.
The failure to put in place reasonable measures to protect prisoners from disease and infection could, in principle, expose the state to delictual liability despite the potential of exposing the state to unlimited liability. The court also found that the systemic health care failings were wrongful and held that a person who is imprisoned is delivered into the absolute power of the state and loses his autonomy. When the state removes the autonomy of the individual, it assumes an obligation to attend to
812 Paras 10 to 31. 813 111 of 1998.
171 the physical welfare of its prisoner. The court held that this duty is based, in part, on the fact that prisoners are amongst the most vulnerable people in society.814
The court therefore found that there was a duty on the prison authorities to provide a proper health care system and also found that the prison authorities had failed in this duty. However, the question then arose whether that omission caused the harm suffered by the plaintiff. The court held that whether harm would have occurred if reasonable action had been taken to avoid that harm entails a two-stage factual enquiry. First, what action would a reasonable person in the position of the defendant have taken to avoid the occurrence of the harm? The second stage of the enquiry, which can only be performed once the first has been answered, is whether the harm would have been avoided had the action been taken? This is the sine qua non or “but for the omission” test. The court held that even if the prison authorities had maintained a proper health care system which contained precautions against the spread of TB, the risk of infection still existed. In other words, in the absence of proof that reasonable systemic adequacy would have altogether eliminated the risk of contagion, it could not be held that the prisoner would probably not have contracted the disease.815 The action was therefore dismissed.
The plaintiff did attempt, at the appeal stage, to amend his claim by inserting an additional claim for constitutional damages but the court did not allow this since it would require additional evidence.
In summary therefore, the Supreme Court of Appeal ruled that even though the prison authorities had failed to take reasonable measures to prevent the contraction of tuberculosis by the prisoner, causation had not been proved and therefore the state was not liable. However, the case did establish that, in principle, a prisoner can take action against the state where the negligence is not related to a particular incident but where the negligence arises from systemic failings since there was a duty upon the State to ensure the existence of a proper health care system and that the state had failed in that duty.816
814 Par 42. 815 Paras 49 and 64. 816 Par 32.
172
The matter then went on appeal to the Constitutional Court817 which accepted the factual findings of the Supreme Court of Appeal regarding the systemic failings of the prison at Pollsmoor and also accepted the findings regarding the duties that that court had identified as being duties owed by the prison authorities to the prisoners, but rejected the strict application of the sine qua non test.
The court held that the test required the application of common sense when determining whether “but for” the omission the harm would still have occurred. This did not require proof of a scientifically controlled nature. What was required was to determine hypothetically what the responsible prison authorities ought to have done to prevent potential TB infection and then to ask whether that conduct had a better chance of preventing infection than the conditions which actually existed during the plaintiff’s incarceration. The court held that substitution and elimination in applying the “but-for” test is no more than a mental evaluative tool to assess the evidence on record and that, in this particular matter, this hypothetical exercise shows that probable causation had been proved. The court held that a flexible approach was necessary when dealing with causation where the wrong complained of was an omission.818 The decision in the Supreme Court of Appeal was therefore overturned and set aside.
The duty of prison authorities to care for prisoners under their control, because of their unique vulnerability and their complete dependence on the state for the necessities of life extends to the provision of proper medical care.
In the matter of EN and Others v Government of RSA and Others819 the first fifteen applicants were prisoners serving sentences at Medium B Section at the Westville Correctional Facility and the sixteenth applicant was the Treatment Action Campaign. The respondents were various branches of Government who had been responsible for the health and care of the respondents.
817 Lee v Minister of Correctional Services 2013 supra. 818 Par 60. 819 2007 (1) BCLR 84 (D).
173 The court held that the state had a legal and Constitutional obligation to provide adequate medical treatment to prisoners who needed it and this would include antiretroviral (ARV) medication when necessary. The court analysed the World Health Organization requirements for the provision of ARV treatment to persons suffering from HIV/AIDS. The court held that the state had two primary constitutional obligations to prisoners in this context, namely, section 27 which provides for the right to have access to health care and section 35(2)(e) which provides that all detainees have a right to inter alia adequate health care.
The court ordered the state to remove all obstacles that were preventing the prisoners from having access to adequate health care including the provision of ARV medication.
The duty upon the state to provide prisoners with proper health care is greater than the state’s duty in respect of the ordinary citizen and this is because of the vulnerability of the prisoner and his unique position of dependence upon the state.
Thus, in B and Others v Minister of Correctional Services and Others820 four HIV positive prisoners in Pollsmoor Prison sought an order entitling them to be examined by a specialist and allowing them to receive combination HIV treatment821 when their CD4 count has dropped below 500/ml.822 The court considered section 35(2)(e) of the Constitution and found that the only dispute between the parties was whether the applicants were entitled to treatment that was superior to that provided by the state to non-prisoners at the state’s expense. The applicants sought the provision of a cocktail of drugs which was superior and more expensive than those supplied by the state at state hospitals for non-prisoners.823 The respondents were tendering
820 1997 (6) BCLR 789 (C). 821 Par 13. 822 CD4 (cluster of differentiation 4) is a glycoprotein found on the surface of immune cells including those of the T helper cells. CD4+ T helper cells are white blood cells that send signals to other types of immune cells to destroy infections. The depletion of these cells exposes the body to opportunistic infections. HIV infection leads to a continued reduction in the number of T cells expressing CD4. The CD4 count is employed, inter alia, to decide when to start treatment following HIV infection. This is expressed as the number of cells per microliter of blood with normal patients CD4 cells being 500-1200 cells/mm3. 823 Paras 24 and 38.
174 provision of the same type of drug as made available in state hospitals to non- prisoners.824
The court employed the principle of a residuum of rights, but also held that the constitution itself created a distinction between the general population and the prison population in the form of section 35(2)(e).825 The court held that what the state generally provided was not an absolute standard for the treatment of prisoners and further that what was required in prison may differ from what is required by the general population.826 The court held that when the state imprisoned an individual they removed his ability to care for himself and that he had become dependent upon the state for the necessities of life. Thus, when the residuum of rights principle was invoked, even if some persons were dependent on the state for anti-viral treatment upon their release, this would not be the case with all as many would provide their own treatment. These people have then been deprived of some of their rights, that is, the right to provide for their own treatment. The court further found a particular type of treatment regime was employed at the state hospitals. This was provided to those who could not afford their own treatment. The court held that this treatment provided at state hospitals could not be employed as a standard for the type of treatment to be provided to prisoners. Prisoners, either prior to their imprisonment, or after their release, may have used their own funds to procure the better treatment. This right to the better treatment is not one necessarily removed by imprisonment. Furthermore, prisons are an environment in which opportunistic infections are easily spread. This renders prisoners prone to these opportunistic infections. This factor also demands that they be treated differently.827
There are a number of other systemic problems that have been identified by the inspecting judge,828 namely, gangsterism,829 inter prisoner and staff on prisoner
824 Ibid. 825 Par 52. 826 Par 54. 827 Par 54. 828 On 20 February 1997 the Correctional Services Amendment Act No 102 of 1997 amended the Correctional Services Act No 8 of 1959 to provide for the establishment of the Judicial Inspectorate, the appointment of an Inspecting Judge and Independent Prison Visitors. Sections 85 to 94 of the Correctional Services Act No 111 of 1998 now deal with the Judicial Inspectorate. The Inspectorate is an independent statutory body and not an arm of the Department of Correctional Services. It is investigating and reporting authority but it does not
175 violence, corruption, infectious diseases including HIV and TB, staffing problems, lack of rehabilitation programmes and overcrowding.830
It will be submitted in accordance with the principle demonstrated in both the matters of Lee v Minister of Correctional Services831 and B and Others v Minister of Correctional Services and Others,832 that once the prison authorities are aware of these problems, as they are from sources such as the inspecting judges report, there is a greater duty upon them to be vigilant and protect the prisoners against the potential source of harm, than might otherwise be the case. For the sake of convenience, this duty to ensure the safety and welfare of the prisoner will be referred to as the “safe passage” principle. It will also be proposed that it would be useful to term the principle governing the relationship between the prisoner and the state the “ward” principle in order to emphasize the duty owed by the state to the prisoner, as its ward.
Furthermore, it will be submitted that the state has a duty to protect the privacy of prisoner in the context of health care. In Van Biljon and Others v Minister of Correctional Services and others833 the plaintiff sued the Minister on the basis that he was tested for HIV without his consent. The court found that if a blood test is performed without consent, it would constitute an actionable invasion of privacy. The court distinguished between consent which is informed consent and uninformed consent. The court held that uninformed consent is not true consent. It was held that
have any disciplinary powers in respect of correctional officials or prisoners. The inspectorate is an integral part of the means of protection of prisoner rights by providing an independent mechanism to investigate and scrutinize the activities of the Department of Correctional Services. 829 Minister of Correctional Services v Tobani [2001] 1 All SA 370 (E); S v Dlamlenze 1976 (1) SA 766 (O). 830 Erasmus "Annual Report for the period 1 April 2006 to 31 March 2007 submitted to Mr Thabo Mbeki, President of the Republic of South Africa Mr Ngconde Balfour, Minister of Correctional Services and Ms Loretta Jacobus, Deputy Minister of Correctional Services by The Acting Inspecting Judge of Prisons Judge Nathan Charles Erasmus in compliance with section 90 (4) of the Correctional Services Act, Act 111 of 1998" (31-03-2007) Judicial Inspectorate for Correctional Services
176 it is both our law and the policy of the department that the consent to HIV testing must be informed consent.
The court found that contrary to the plaintiff’s evidence he had given consent to be tested. However, the court went on to find that the testing was not done with proper counseling and accordingly the consent was not informed consent. The court held that for this type of action to succeed the conduct of the defendant need not be actuated by malice. Since the prisoner had not given informed consent his action was successful and he was awarded R1 000,00 in damages.
4. RESIDUUM PRINCIPLE
A prisoner retains all those rights which have not been taken away by law and which are not necessarily inconsistent with the circumstances in which he has been placed.
In Whittaker v Roos and Bateman834 prisoners instituted action against the prison authorities for iniuria based upon their treatment in prison. This was then taken upon appeal in Morrant v Roos and Bateman.835 In this case the Appellate Division articulated the principle that has been variously named, the “Goldberg” principle or the “residuum of rights” principle. It is this principle that was to form the backbone of the South African prison law. The principle provides that prisoners are entitled to all their personal rights and personal dignity not temporarily taken away by law, or necessarily inconsistent with the circumstances in which they had been placed.
The principle was then further expanded upon in a minority decision in Goldberg v Minister of Prisons836 where it was held that a convicted and sentenced prisoner retains all the basic rights and liberties of an ordinary citizen except those taken away by law, expressly or by implication, or those necessarily inconsistent with the circumstances in which he, as a prisoner, is placed. Given the limitations inherent in imprisonment, including limitations on freedom of movement or place of imprisonment, limitation and regulation of contact with the outside world and the
834 1911 TPD 1092. 835 1912 AD 92. 836 1979 (1) SA (14).
177 discipline of prison life, there remains nevertheless a substantial residuum of basic rights which the prisoner cannot be denied.
This principle has since been confirmed and applied in a large number of decisions.837
5. PRISON STAFF
The role of prison staff is to ensure that prisoners are not treated in a manner which is cruel, inhuman or degrading,838 they shall ensure that the prison is safe, that security is maintained, that good order and discipline prevail in prison839 and ensure the rehabilitation and re-integration programmes are conducted.840
Prison staff carry out an important public service and their recruitment, training and conditions of work should enable them to maintain high standards in their care of prisoners.
Prisons provide a public service of great importance with the objective of contributing to the public good.841 Prison staff have considerable power over prisoners and this can easily lead to an abuse of power, so prison staff require a strong ethical framework and should be carefully selected, properly trained, supervised and supported.842 Staff training shall include instruction in the international, regional and
837 Stanfield v Minister of Correctional Services and Others supra; B and Others v Minister of Correctional Services and Others supra; Namunjepo and Others Commanding Officer, Windhoek Prison and Another supra; Minister of Justice and Another v Hofmeyr 1993 (3) SA 131 (A); Cassiem v Commanding Officer 1982 (2) SA 547 (C); Pretorius v Minister of Correctional Services 2004 (2) SA 658 (T); Lee v Minister of Correctional Services (2013) supra; Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) and Others 2004 (5) BCLR 445 (SCA); August and Another v Electoral Commission and Others 1999 (4) BCLR 363 (CC). 838 EPR Rule 72(1). 839 EPR Rule 73; South Africa, Correctional Services Act s 26. 840 Coyle A Human Rights Approach to Prison Management 14; EPR Rule 72(3); South Africa, Correctional Services Act s 96(1). 841 Coyle A Human Rights Approach to Prison Management 13; UNSMR Art 46. 842 Coyle A Human Rights Approach to Prison Management 13; South Africa, Correctional Services Act s 37(1A) and s 96(3); Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Art 18; Collins Jails and the Constitution An Overview 75.
178 national human rights instruments and standards. The prison administration shall outlaw corrupt or dishonest843 activities between staff and prisoners.
As representatives of the community, prison staff shall at all times conduct themselves and perform their duties in a manner that serves as a good example to the prisoners and commands their respect.844
Prison staff shall include the specialists necessary to care for the prisoners and to facilitate their rehabilitation and re-integration into society. These specialists should include psychiatrists, psychologists, social workers, teachers and trade instructors.845
This duty is recognized in both Europe846 and in the United States of America.
This has given rise to “failure to train” cases in the United States of America where the state’s failure to train staff has been so serious that it demonstrates a deliberate indifference to the constitutionally protected interests of the prisoner and that that failure to train resulted in a violation of the prisoner’s fundamental rights. This would be a “but for” argument, namely, that “but for” the failure to train, the violation would not have occurred.
Thus in City of Canton v Harris847 the prison authorities failed to properly train staff in the use of force and in the conduct of their duties. A prisoner was injured when a poorly trained staff member used excessive force. This was found to constitute an Eighth Amendment violation.
The failure to train in basic medical procedures can also give rise to such a claim.848
843 South Africa, Correctional Services Act s 95A. 844 UNSMR Art 48; EPR Rule 75. 845 UNSMR Art 49; South Africa, Correctional Services Act; EPR Rule 89; The Kampala Declaration On Prison Conditions In Africa Art 6. 846 EPR Rule 8. 847 489 U.S. 378 (1989). 848 Brock v Warren County supra.
179 The recognition that prison staff carry out an important public service and maintain high standards in their care of prisoners places a duty upon the management of the prison services to ensure that their recruitment, training and conditions of work shall enable them to perform that function. Failure of management to put proper systems and staffing into place may give rise to delictual liability on the part of the state when this causes harm to prisoners.849
6. INSUFFICIENT MATERIAL RESOURCES OF THE STATE
It will be argued in this section that the prohibition on torture and cruel, inhuman or degrading treatment or punishment is an absolute prohibition to which the insufficient material resources of the state are not relevant, that is, this is an absolute prohibition irrespective of whether the state has the means to enforce it.850
In terms of international prison law no prisoner shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.851 A state may invoke no circumstance whatsoever as a justification for torture or other cruel, inhuman or degrading treatment or punishment.852 It is a fundamental rule of prison law that all prisoners shall be treated with due regard for their humanity and with respect for their dignity853 and consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available to the State.854
849 Lee v Minister of Correctional Services 2013 supra 850 It is submitted that this proposition is supported by Prevention and Combating of Torture of Persons Act 13 Of 2013 851 Universal Declaration of Human Rights Art 5; UNSMR Art 31; International Covenant on Civil and Political Rights (ICCPR) Art 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Art 1; EPR Rule 3; South African Constitution s 12; African Charter on Human and Peoples' Rights Art 5; European Convention on Human Rights Art 3. 852 International Covenant on Civil and Political Rights Art 7; Convention1 Against Torture And Other Cruel, Inhuman or Degrading Treatment or Punishment Art 2 and Art 16. 853 The Kampala Declaration On Prison Conditions In Africa Art 3; South African Constitution s 35(2)(e). 854 UN Human Rights Committee General Comment 21; EPR Rule 4; Coyle A Human Rights Approach to Prison Management 46; Prison Reform International Making Standards Work: An International Handbook On Good Prison Practice 44; United States Court of Appeal 17 in Harris v Thigpen supra; Van Biljon v Minister of Correctional Services supra.
180 The possibility of insufficient material resources of the state has been raised as a possible defence in certain cases in the context of South African prisoner rights litigation, but has not yet been decided upon. In the cases of B and Others v Minister of Correctional Services and Others855 and Moegamat Fatieg Jaftha v The Honourable Minister of Correctional Services856 these defences were raised by the state. In the first mentioned case, the Department of Correctional Services was being compelled to provide a cocktail of HIV anti-retrovirals to a group of prisoners and the state claimed lack of funds as a defence. The court held that insufficient evidence was placed before the court to explain why the department could not afford to provide it. Since the state had failed to factually substantiate that defence, the issue was not debated. In the second case, the defendant’s staff were negligent in not preventing an assault of one prisoner by another. The matter involved only a single incident of negligence, as opposed to a systemic or prison wide problem, and the court therefore found it was not necessary to deal with the defence of lack of resources.
The defence which the state has proposed in the above two matters is that insufficient resources would constitute a defence to an action or application demanding that the prisoner be held in conditions consistent with human dignity. Therefore the limitation of the prisoner’s rights is not sought to be justified in pursuance of a legitimate purpose of punishment but is sought on the basis of a lack of resources.
The state is likely to raise the defence of insufficient resources to either an interdict or to a delictual action.857 In both of these instances the state will attempt to convince the court that it is unable to provide the services necessary to respect the fundamental rights in question because to do so would be impossible given the costs thereof. Therefore, the position regarding both delicts and interdicts will be debated below.
855 1997 (6) BCLR 789 (C). 856 High Court of South Africa, Port Elizabeth, Case No: 1342/2009. 857 Moegamat Fatieg Jaftha v The Honourable Minister Of Correctional Services supra.
181 In the field of delict there are two important but distinct enquiries. The one is wrongfulness and the other is fault (culpa or dolus). In the latter, the test is whether the defendant or wrongdoer failed to act as a reasonable man and in the former the test is similar.858
As a general rule our law is reluctant to impose liability for omissions since it is informed by a laissez faire concept of liberty. However, where the conduct of a public authority or a public functionary is in issue, the situation is different because it is the business of a public authority or functionary to serve the interests of others. Therefore, there is a greater duty to avert harm to others. However, the imposition of a legal duty on such a functionary to act is not limitless. This duty is inhibited by the utility of permitting them the freedom to provide public services without the threat of litigation if they happen to act negligently. Whether a public authority or functionary has acted negligently is to be determined by an enquiry that ensures that undue demands are not placed upon them. The extent of the resources at their disposal and the manner in which they have ordered their priorities will, by necessity, be taken into account in determining whether they acted negligently.859
Wrongfulness may be thought of as the duty not to be negligent.860 Certain acts may have fault attached to them and even intend to cause harm to another; for example, an effort to attract customers away from another by way of lawful competition. These acts will not attract liability because even though the other elements of the delict are present the conduct is not wrongful.
The test for wrongfulness is also reasonableness,861 that is, is it reasonable to impose liability in these circumstances?862 The two enquiries in our law are distinct. Wrongfulness involves the legal convictions of the community which involves inter
858 Boberg The Law of Delict Volume 1 Aquilian Liability (1984) 31. 859 Minister of Safety & Security v Van Duivenboden 2002 (6) SA 431 (SCA); Moegamat Fatieg Jaftha v The Honourable Minister Of Correctional Services supra; McIntosh v Premier, Kwazulu Natal & Another 2008 (6) SA 1 (SCA); In Mukheiber v Raath & Another 1999 (3) SA 1065 (SCA); Kruger v Coetzee 1966 (2) SA 428 (A). 860 Trustees for the Time Being of Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd (545/2004) 2005] ZASCA 109; [2007] 1 All SA 240 (SCA) p 8 par 10. 861 Government of the Republic of South Africa v Basdeo and Another 1996 (1) SA 355 (A). 862 Kruger v Coetzee supra.
182 alia reference to the Constitution.863 Therefore, when determining whether an act or omission is actionable in delict, the court will consider the reasonableness of the defendant’s conduct in regard to wrongfulness and negligence. In both of these the court may consider what resources are at the disposal of the functionary in question. Therefore, insufficient resources may form a defence in regard to a delictual action launched by a prisoner.
In the field of interdicts, a similar defence may be raised. The question will be whether a court will grant an interdict to enforce prisoner rights when the state raises the defence of insufficient resources.
A court has a discretion to grant or refuse the interdict even if the other elements required to enforce an interdict are proved, viz a clear right, an injury actually committed or reasonably apprehended and the absence of any other satisfactory remedy.864
One of the bases upon which the court can refuse to grant an interdict, whilst exercising its discretion is that the cost thereof will be prohibitive.865
Thus, in one form or another, when the issue of the infringement or limitation of the rights of a prisoner or group of prisoners comes before court, the question could arise whether the prisoner is entitled to the enforcement of his rights even though the costs involved would be prohibitive.
In order to further the debate about whether limitations of the rights of prisoners can be justified on the basis of a lack of resources, it is submitted that prisoner rights need to be divided into two broad categories. The first category of rights are those rights which fall under the umbrella of “human dignity”. The second category of rights are the balance of the prisoner’s rights. It is submitted that it is not possible to create a numerus clausus of the second category of rights since the residuum principle
863 Ramushi v Minister of Safety and Security (6895/2002) 2012 ZAGPPHC 175 (18 August 2012) SAFLII
183 provides that a prisoner retains all the basic rights and liberties of an ordinary citizen except those taken away from him by law, expressly or by implication, or those necessarily inconsistent with the circumstances in which he, as a prisoner, is placed.
Regarding the first category of rights, section 12(1) of the Constitution prohibits torture and treatment or punishment in a cruel, inhuman or degrading manner. As argued elsewhere866 the Constitution only contains one set of non-derogable rights and this is in the context of states of emergency. However, South Africa’s international obligations preclude any justification for torture and treatment or punishment in a cruel, inhuman or degrading manner.867 These international obligations were entered into after868 the decisions in S v Makwanyane869 and S v Williams.870 It is submitted that this is the reason that the court in those matters was still obliged to consider whether or not the relevant types of punishment were justifiable even though they were found to be cruel, inhuman and degrading.
Conditions of detention must not violate this prohibition.871 This is the primary principle underlying the Correctional Services Act872 and the accompanying regulations.873
When the State removes the autonomy of the individual it assumes an obligation to attend to the physical welfare of its prisoner. This duty is based, in part, on the fact that prisoners are amongst the most vulnerable people in our society.874 The prisoner becomes dependent upon the state for the provision of the necessities of life. In the case of the prisoner the state, in pursuance of its right and/or obligation to punish, has removed the ability of the prisoner to provide for himself and in that
866 See s 1 of this chapter. 867 ICCPR GA Res 2200A (XXI) of 16 December 1966, 21 UN GOAR Supp (No 16) 52, UN Doc A/6316 (1966), Art 7 as read with Art 4. 868 South Africa signed the ICCPR on 3 Oct 1994 and ratified it on 10 Dec 1998. 869 1995 (3) SA 391. 870 1995 (3) SA 632. 871 Thukwane v Minister of Correctional Services and Others supra. 872 111 of 1998, Ch III. 873 GN R 9739 in GG 35277 of 25-04-2012, Chs II and III. 874 Lee v Minister of Correctional Services 2013 supra par 42.
184 sense he has become a ward of the State.875 This limitation is permissible in pursuance of the legitimate purposes of punishment.
This permissible limitation of rights is not an unlimited permission to limit rights of the prisoner. The permission is limited to the legitimate purposes of punishment. The provisions in the empowering legislation, that is the Correctional Services Act,876 expressly circumscribe the power to incarcerate by stating that all prisoners must be detained in safe custody whilst ensuring their human dignity. Therefore, the power, or right to punish by way of incarceration, is one which is intrinsically tied to the obligation to provide a certain minimum level of service to the prisoner. In other words, any effort to justify a violation of “human dignity” rights whilst incarcerating a prisoner on the basis of the limited resources at the disposal of the state must fail because the power to incarcerate is itself limited to the provision of conditions consistent with human dignity.
It will be further submitted that only incarceration that respects human dignity is permitted in our law. This is imprisonment in a form that is consistent with section 35(2)(e) of the Constitution.
This interpretation is consistent with section 2 of the Correctional Services Act877 which provides that the purpose of the correctional system is to contribute to maintaining and protecting a just, peaceful and safe society by, inter alia, detaining all prisoners in safe custody whilst ensuring their human dignity. In other words it is explicit in the legislation that incarceration878 is only permitted in conditions that are consistent with human dignity. Thus, it follows that incarceration which is not consistent with human dignity is not permissible.
There are no legislative provisions entitling any incarceration of prisoners under conditions which are not consistent with human dignity.879 Thus, the issue of
875 B and Others v Minister of Correctional Services and Others supra. 876 S 2 Act 111 of 1998. 877 111 of 1998. 878 Correctional Services Act 111 of 1998, s 2(b) and pre-amble. 879 The principle of legality requires that even those rights of prisoners which are restricted as necessary consequence or incarceration may only be limited if this is done by legislation, either
185 resources cannot justify an infringement of human dignity since there is no authority conferred upon the State to detain under these conditions. There can thus be no debate about costs in this context.
An obvious example of this would be the provision of adequate food.880 The state cannot starve prisoners. The state is obliged to provide prisoners with sufficient food. If they fail to do so then the prisoners will starve to death. This is not permissible. If the state is unable to fulfill its obligation to feed the prisoners then it is obliged to release them. There are other rights that fall under this category of “human dignity”881 and would include, inter alia, a safe and healthy living environment, protection against assault, the provision of adequate sanitation, adequate health care and adequate mental health care. These rights are set out in Chapter 3 of the Correctional Services Act.882
The above submission regarding certain rights that fall under the umbrella or banner of “human dignity” is further supported by the constitution883 and legislation.884
Furthermore, in terms of section 37(5) of the Constitution, the human dignity provisions contained in section 10 of the Constitution are non-derogable rights.
Limitations of fundamental prisoner rights are only permissible if they are purposively linked to the legitimate purpose of punishment. These legitimate purposes of punishment are retribution, prevention, deterrence and rehabilitation. Limitations of rights that consist of conditions that are not consistent with human dignity are
expressly or by necessary implication. The restrictions must in addition, be formulated sufficiently narrowly to ensure that prisoners are not exposed to overbroad discretionary powers which deny them protection of the law. Minister of Correctional Services and Others v Kwakwa 2002 (4) SA 455 (SCA); Kruger v Minister of Correctional Services and Others (7117/02) 2005 ZAGPHC 24 (2 March 2005) SAFLII http://www.saflii.org/za/cases/ZAGPHC/2005/24.html> (accessed 21-04-2013); Thukwane v Minister of Correctional Services and Others supra; Mohammed v Minister of Correctional Services and Others 2003 (6) 169 (SE). 880 Correctional Services Act 111 of 1998, s 2. 881 Correctional Services Act 111 of 1998, Ch 3, Pt A. 882 111 of 1998. 883 S 35(2)(e) of the Constitution provides for conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment. 884 Correctional Services Act 111 of 1998, Ch 3, Pt A.
186 generally criminogenic, that is, they promote recidivism and thus they defeat the object of punishment. Therefore such limitations are not justifiable.885
A further argument in support of this point is that the principle of interpretation expressio unius est exclusio alterius886 may be applied to statutes and therefore to the Bill of Rights.887 The only rights which are to be expressly limited by the resources available to the State are section 26 (housing or accommodation), section 27 (health care and nutrition) and section 29 (education). These sections permit a progressive realisation of the rights contained therein based upon the resources available to the State. Consequently, it will be submitted that the other rights cannot be limited by, or only progressively realized because of, the resources available to the State.
This interpretation is supported by section 35(2)(e) of the Constitution, concerning conditions of detention consistent with human dignity. The fundamental rights which are enumerated in section 35(2)(e) are those of health care, education and accommodation. These three groups of rights are of the same type as those referred to in the general sections of section 26, section 27 and section 29. In other words, in order to avoid any possible misunderstanding about healthcare, education (at the very least reading material) and accommodation being rights that can be progressively realised in respect of prisoners, the legislature expressly stated that those rights are fundamental to prisoners and they are not to be qualified with the “progressive realization” provisions. Only in respect of the rest of the population do the progressive realization provisions apply.888
South Africa’s has signed and ratified both the Convention Against Torture889 (CAT) and the ICCPR.890 In terms of Article 16 of the CAT, each State Party shall
885 See s 15.4 infra as read with s 2.4.3.3 in chapter on Theories of Punishment infra. 886 The express mention of one thing excludes all others. 887 Rossouw and Another v First Rand Bank Ltd t/a FNB Homeloans (Formerly First Rand Bank of South Africa Ltd) 2010 (6) SA 439 (SCA). 888 This distinction between the population in general and prisoners is confirmed in B and Others v Minister of Correctional Services and Others supra. 889 UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984.
187 undertake to prevent in any territory under its jurisdiction acts of cruel, inhuman or degrading treatment or punishment. Article 11, as read with Article 16 provides that each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of cruel, inhuman or degrading treatment and punishment. In terms of Article 7 of the ICCPR no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. There is no provision in either treaty for derogation from this obligation. To give effect to the South Africa’s obligations in terms of CAT, to provide for the offence of torture of persons and to prevent and combat the torture of persons within or across the borders of South Africa parlilament enacted the Prevention and Combating of Torture of Persons Act.891
Once this principle is accepted then it follows that limited resources of the state cannot be accepted as a basis for treating a prisoner in a manner which is not consistent with human dignity. Stated differently, the imprisonment in conditions that are not consistent with human dignity is not justifiable on the basis of insufficient material resources of the state.
The second broad debate concerns the limitations of prisoner fundamental rights while incarcerated, but which fall short of being brought under the umbrella of “human dignity” and further, which limitations are not justifiable on grounds other than a lack of resources. In other words, can the State justify the removal of rights beyond what is necessary for the legitimate purposes of punishment on the basis that it has insufficient material resources to fulfill its obligations? This in turn can be broken in to two separate areas of debate.
The first category is where the limitation of prisoner fundamental rights is caused by insufficient resources of the state, but the limitation does not violate the human dignity provisions of the Constitution and the effect of the limitation is such that it
890 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Art 49. 891 Act 13 OF 2013
188 does not frustrate the purposes of punishment. In terms of section 36 any limitation of fundamental rights must be consistent with human dignity and justifiable in an open and democratic society based on equality and must be rationally related to the purpose of the limitation.892
Therefore, it is submitted the limitation of the prisoner’s rights on the basis of insufficient material resources will not be constitutionally defensible, since the only permissible limitation must be for legitimate a purpose, but the court may, in these circumstances, exercise its discretion not to grant the relief sought by the prisoner, depending on the circumstances.
The second category is where the limitation of prisoner fundamental rights is caused by insufficient resources of the state but the limitation does not violate the human dignity provisions of the Constitution and further the effect of the limitation is such that the limitation does frustrate the purposes of punishment. In terms of section 36 any limitation of fundamental rights must be consistent with human dignity and justifiable in an open and democratic society based on equality and must be rationally related to the purpose of the limitation.
Therefore, it is submitted that the limitation of the prisoner’s rights on the basis of limited resources will not be constitutionally defensible, since the only permissible limitation must be for legitimate a purpose, but the court should not exercise its discretion to refuse the relief sought by the prisoner in these circumstances since the substratum of the purpose of punishment is being threatened.893
7. THE PRINCIPLE OF LEGALITY
The principle of legality requires that even those rights of prisoners which are restricted as necessary consequence of incarceration may only be limited if this is done by legislation, either expressly or by necessary implication. The restrictions
892 S v Makwanyane supra; S v Williams supra. 893 See s 15.4 below.
189 must in addition be formulated sufficiently narrowly to ensure that prisoners are not exposed to overbroad discretionary powers which deny them protection of the law.894
8. UBUNTU
The interim Constitution895 expressly mentions the concept of ubuntu896 but the current Constitution does not, although the values of ubuntu are expressed in the preamble. Ubuntu as a legal principle has come to form part of our common law.897 It is recognised as an important source of law in matters where there has been a breakdown in the relationships between individuals or within groups in society. The principle emphasizes reconciliation and the value of human life.
The following may be considered important aspects of ubuntu: it is to be contrasted with vengeance; it places a high value on human life; it has a high regard for human dignity and compassion; it places a premium on dignity, compassion, humaneness and respect for the humanity of others; it dictates a shift from confrontation to mediation and conciliation; it dictates good attitudes and shared concern; it favours the re-establishment of harmony in the relationship between parties and that such harmony should restore the dignity of the plaintiff without ruining the defendant; it favours restorative rather than retributive justice; it operates in a direction favouring reconciliation rather than estrangement of disputants; it works towards sensitising a disputant or a defendant in litigation to the hurtful impact of his actions to the other party and towards changing such conduct rather than merely punishing the disputant; it promotes mutual understanding rather than punishment; it favours face-to-face encounters of disputants with a view to settling differences rather than conflict and
894 Minister of Correctional Services and Others v Kwakwa supra; Kruger v Minister of Correctional Services and Others (7117/02) 2005 ZAGPHC 24 (2 March 2005) SAFLII http://www.saflii.org/za/cases/ZAGPHC/2005/24.html> (accessed 21-04-2013); Thukwane v Minister of Correctional Services and Others supra; Mohammed v Minister of Correctional Services and Others supra. 895 Act 200 of 1993. 896 See the unnumbered section after s 251 headed “National Unity and Reconciliation”. 897 S v Makwanyane supra paras 131, 225, 250, 307; Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 517 (CC) at par 37; Dikoko v Mokatla 2006 (6) SA 235 (CC) at paras 68- 69,112 and 115-116; Masethla v President of RSA 2008 (1) SA 566 (CC) at par 238; Union of Refugee Women v Private Security IndustryRegulatory Authority 2007 (4) SA 395 (CC); Hoffmann v South African Airways 2001 (1) SA 1 (CC) par 38; Barkhuizen v Napier 2007 (5) SA 323 (CC) par 50; Bhe and Others v Magistrate Khayelitsha and Others 2005 (1) SA 580 (CC) paras 45 and 163.
190 victory for the most powerful and it favours civility and civilised dialogue premised on mutual tolerance.898
Ubuntu has been described as emphasising the communal nature of society and that it embodies the ideas of humaneness, social justice and fairness. Furthermore, ubuntu envelopes the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity.899
The legal concept of ubuntu is informed by the philosophical concept of ubuntu. It may be regarded as a social value that traditional African societies aspired to. It also formed the moral basis for co-operation, compassion, communalism and concern for the interests of the collective, respect for the dignity of the person and an emphasis upon dignity in social relationships and practices.900
It will be submitted that in the context of prison law, ubuntu has a significant role to play. Firstly, by its very nature it favours restorative over retributive justice and that means that retribution becomes less important when the state punishes901 an individual. Secondly, it will inform the manner in which the employees of the state are obliged, by way of legal duty, to treat prisoners, that is, with respect for their human dignity. Thirdly, the high value placed on compassion and human dignity implies that punishment is not to be arbitrary.902 Fourthly, it implies that prisons should not be places where prisoners become hardened,903 but rather a place where they are sensitised to the hurtful impact of their actions to the other party and towards changing such conduct rather than merely punishing the prisoner. That is, rehabilitation and re-socialisation are to be the purpose of punishment. Finally, in Makwanyane904 the court held that ubuntu is a fundamental value underlying our constitutional democracy and that in the context of punishment this incorporates
898 Afri-Forum and Another v Malema and Others 2011 (6) SA 240 (EqC). 899 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC). 900 Mokgoro "Ubuntu And The Law In South Africa" African Journals Online
191 rehabilitation as a fundamental constitutional value against which punishment must be judged.905
9. THE RIGHT TO LAWFUL, REASONABLE AND PROCEDURALLY FAIR ADMINISTRATIVE ACTION
All prisoners have the right to administrative action that is lawful, reasonable and procedurally fair.906
Administrative law is a branch of public law that regulates the legal relations of public authorities with private individuals or organizations, which may include other public authorities. There are two aspects to administrative law, namely, general and specific. General administrative law comprises the general principles of law that regulate the organization of public authorities and the fairness and efficacy of the administrative process, regulate the validity of and liability for administrative action and inaction and the remedies available following such action or inaction. Particular administrative law comprises the legislation and legal principles as applicable to a particular area of administration.907
Prison law as a whole is an area of particular administrative law.908 Almost all aspects of the prisoner’s life are minutely controlled by particular rules909 set forth in both the Correctional Services Act910 and the Correctional Services Regulations.911
This area of law is thus of importance in the context of prisoner rights. In Roman v Williams NO912 the applicant had been sentenced to five years imprisonment which was subject to the provisions of section 276(1)(i) of the Criminal Procedure Act.913
905 S v Makwanyane supra paras 241 and 260. 906 S 33 of the Constitution. 907 Baxter Administrative Law 2nd ed (1989) 2. 908 Van Zyl Smit South African Prison Law and Practice 85. 909 Examples of these would include size of accommodation (minimum square meterage of cells), nutrition (times to be fed and amounts and the calories content thereof), hygiene, clothing and bedding, exercise, health care and religion, belief and opinion. 910 111 of 1998. 911 GN R 9739 in GG 35277 of 25-04-2012, Chs II and III. 912 1997 (9) BCLR 1267 (C). 913 51 of 1977.
192 This provision allows the Commissioner of Correctional Services in his or her discretion to place the prisoner under correctional supervision. After one year of imprisonment the applicant had been placed under correctional supervision subject to certain conditions. After the applicant had allegedly breached the conditions, the Commissioner of Correctional Services in terms of section 84B(1) decided to re- imprison the applicant. It was this decision to re-imprison the applicant which was the subject of this review application.
The conditions were, inter alia, that he would conduct himself properly at all times, that he would not commit a crime or offence of any kind and that he would report at the times stipulated.
The court here found that the common law grounds of review were no longer relevant as a body of law but had been replaced by the constitutional test. This test allows the court to look at its substance and its merits and not just the manner in which the decision was reached. There must be an objective link between the reasons for the decision and the decision itself. In other words, the decision itself must be justifiable. In order to qualify as justifiable three requirements must be met, namely, suitability, necessity and proportionality.
In Ehrlich v Minister of Correctional Services and Others914 the applicant was a sentenced prisoner who applied to review and set aside a decision taken by the prison authorities to deny him access to a gymnasium in the prison at which he had run a karate development program for the previous two years. The authorities alleged their decision was motivated by the desire to segregate certain classes of prisoner from other prisoners. There was no alternative venue. The court relied upon the residuum principle,915 upon the provisions in the Bill of Rights that protect the dignity of the prisoner,916 as well as section 4 of the Correctional Services Act.917 The court held that limitations of prisoner’s rights must be of such a nature that it conforms with the purpose of the limitation and the
914 2009 (2) SA 373 (E). 915 Par 6. 916 Par 8. 917 Par 11.
193 limitation must not affect the prisoner to a greater degree or for a longer period than necessary.918
The court held that in terms of section 41(5) of the Correctional Services Act a prisoner has a right to participate in development programs like the karate development program.919 The decision to prevent him from exercising his rights was an administrative decision.
The administrative decision that prevented the applicant from participating in the karate development program had materially and adversely affected the prisoner’s rights in terms of section 41(5). The prisoner was entitled to lawful, reasonable and procedurally fair administrative action.920
The court held that the decision was to be set aside for a number of reasons.
Firstly, the prisoner was not given any notice, or afforded any other aspect of a procedurally fair process prior to the decision being taken. Therefore the decision was not made in a procedurally fair manner.921
Secondly, the decision was based on an error of law. The decision maker erroneously believed he had the obligation to segregate the prisoners for all purposes which is not what the Correctional Services Act requires.922
Thirdly, the decision maker had believed he was obliged to segregate the prisoners and thus had no discretion. This is not what the Correctional Services Act provided. Therefore the decision maker had misinterpreted his powers and he had failed to properly apply his mind.923
918 Ibid. 919 Par 16 and par 24. 920 Par 37. 921 Par 39. 922 Par 40. 923 Ibid.
194 Furthermore, the decision was unreasonable as judged by the provisions of section 6(2)(h) of the Promotion of Administrative Justice Act.924
The court therefore set aside the decision of the head of the prison and furthermore the court required an affidavit to be filed requiring the head of the prison to confirm within two weeks that he had complied with the order.
9.1 THE “HANDS OFF” APPROACH TO THE ADMINISTRATION OF PRISONS
The traditional position in South African law was that a review of administrative decisions was only permitted on limited grounds, namely, when the decision maker acted ultra vires, had an ulterior purpose or motive, had taken irrelevant considerations into account or relevant considerations were not considered, had acted in bad faith or had failed to apply his mind and furthermore that the audi alteram partem rule applied.925 Thus the courts were reluctant to interfere with decisions of the executive branch of government, including the prison authorities.
In Goldberg v Minister of Prisons926 political prisoners who were detained under special conditions in the Pretoria Prison were denied access to news of current events despite seeking such access. The application for access to news of current events was dismissed but the court addressed the issue of prisoner’s rights. The court found that prisoners were to be kept in safe custody and the authorities were permitted to apply such treatment as may lead to the reformation and rehabilitation of the prisoners. The prison authorities were also to train prisoners in the habits of industry and labour. The court found that prison administrators were responsible for securing their institutions against escape or unauthorised entry, for the preservation of internal order and discipline, and for rehabilitating the prisoners placed in their custody. The practical constraints in achieving these ends require expertise, planning and allocation of resources, all of which are peculiarly within the knowledge of the relevant branches of government responsible for the management of prisons.
924 Par 43. 925 Van Zyl Smit South African Prison Law and Practice 96. 926 1979 (1) SA (14) (A).
195 The court adopted the approach that the commissioner had wide administrative discretion in determining what privileges were granted to prisoners. It was not for the court to interfere with this unless it could be shown that the commissioner acted either mala fide or did not apply his mind. Either of these could be inferred from the fact that that he acted in a manner which was grossly unreasonable. The court did not find that either of these factors were present.
Hassim and Another v Officer Commanding, Prison Command, Robben Island and another; Venkatrathnam and Another v Officer Commanding, Prison Command, Robben Island and Another927 concerned prisoner rights and primarily the withdrawal of a large number of privileges that had previously been extended to prisoners incarcerated on Robben Island.
The prisoners had a number of grievances and approached their attorney to assist them in formally compiling this list of grievances. The applicant, a prisoner on Robben Island, approached his attorney who drafted the list of grievances and submitted these to the head of the prison. The prison authorities responded to these grievances by imposing punishment in the form of withdrawal of privileges. This punishment was meted out to all prisoners in the block on the basis that it was needed to maintain good order and discipline. It was argued that the applicant’s conduct had caused a deterioration in the good relationship between prisoners and staff and that this punitive regime would continue until the relationship was restored.928
When the applicant complained about the legality of the withdrawal of privileges he was placed in solitary confinement. The solitary confinement was for an indeterminate period and that it was punishment for his role in drawing up the document. The authorities took the view that his objection to the lawfulness of the action was such that it threatened the good order of the prison and consequently drastic action must be taken.929
927 1973 (3) SA 462 (C). 928 466A. 929 466C.
196 The court accepted the principle that the State has an obligation to maintain the detainee during his detention in good health, both in body and mind, but went on to distinguish between necessities and comforts. The court held that the granting or withdrawal privileges is in the discretion of the Commanding Officer and the courts will not interfere. The courts thus adopted a “hands off” approach.930
The court held that it has long been debated whether prisons protect society most effectively by being operated primarily for custody and punishment or for custody and rehabilitation. The two theories, the punitive versus the rehabilitative theory, run counter to each other and both are recognised in general terms in the legislation. For this reason it was necessary to grant the widest discretion to the officers in charge of the prison to administer the affairs of the prison.
Regarding the solitary confinement, the court held that solitary confinement for punitive purposes was permissible but that the law required the prisoner be given a fair hearing before punishment in that form was imposed. Such a hearing had not taken place and therefore the court found this action to be unlawful and set it aside.931
Traditionally, courts in many jurisdictions, including South Africa, as illustrated above, have adopted a broad “hands off” approach towards matters regarding prison administration. This was based upon a belief that prison administrators were responsible for securing their institutions against escape or unauthorised entry, for the preservation of internal order and discipline, and for rehabilitating the prisoners placed in their custody. There are practical constraints in achieving these ends that require expertise, planning and allocation of resources, all of which are peculiarly within the knowledge of the relevant branches of government responsible for the management of prisons.932
930 475E, 476H. 931 481B to C. 932 Kruger v Minister of Correctional Services and Others (7117/02) 2005 ZAGPHC 24 (2 March 2005) SAFLII
197 However, in terms of section 33 of the Constitution, everyone has the right to administrative action that is lawful, reasonable and procedurally fair and everyone whose rights have been adversely affected by administrative action has the right to be given written reasons. The Constitution provided for national legislation to give effect to these rights. This legislation was enacted in the form of the Promotion of Administrative Justice Act.933
What has emerged since the advent of the constitutional right to administrative action that is lawful, reasonable and procedurally fair is a modified “hands-off” principle. For the sake of convenience, the phrase “hands off” principle will apply to the new modified principle.
In the Zimbabwean matter of Conjwayo v Minister of Justice, Legal and Parliamentary Affairs and Others934 the court held that traditionally,935 a broad “hands off” attitude towards matters of prison administration had been adopted by the courts. The court recorded the reasons for the “hands off” principle. However, the court affirmed the view that prisoners were not wholly deprived of their fundamental rights and the constitution still applied to prisoners.936 The court employed the residuum of rights principle, namely, that prisoners were entitled to all constitutional rights, save those inevitably lost as a result of confinement. It was on this basis that the court was willing to intervene in the affairs of the prison which it would not have done under the previous constitutional regime. It was this willingness that still respected the general expertise of the prison service, but recognized that prisoner rights required constitutional protection. This is the modified “hands off” approach.
The court held that it had to strike a just balance between the dehumanising effect of the prison environment on the one hand and the preservation of the internal order and discipline, the maintenance of internal security, and the rehabilitation of prisoners, on the other.
933 3 of 2000. 934 1992 (2) SA 56 (ZS). 935 P 60G – I. 936 P 61A – D.
198 In this matter, as a result of the administrative decisions of the prison authorities, the applicant, pending an appeal for clemency in regard to a sentence of death, was detained in a cell 4,6 meters by 1,42 meters under constant supervision. There were no windows, but there was a mesh for observation if a door was opened. The prisoner was confined inside that cell for 23 ½ hours every weekday and 24 hours a day on weekends and public holidays.937 The court held that these conditions were offensive to the values of humanity and decency and therefore it transgressed the boundaries of civilised standards and furthermore, that it involved the infliction of unnecessary suffering.938 The court thus set the administrative decision aside.
A similar decision was made in the Zimbabwean matter of Blanchard and Others v Minister of Justice, Legal and Parliamentary Affairs and Others939 dealing with administrative decision to keep three missionaries, who had been were captured with firearms on their person and in their car, in conditions that were very poor. The conditions included cells that were 4,5 meters long and 1,5 meters wide with no window. The cells were equipped with electric lights that were kept on 24 hours per day. The prisoners were stripped naked and shackled in leg irons from supper time on each day until the first meal of the next day and were subjected to assaults and torture and were also forbidden to communicate with each other.940
The court endorsed the approach that prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices which in their judgment are needed to preserve internal order and discipline, and to maintain institutional security.941 However, it remains the responsibility of the courts to enforce the constitutional rights of all prisoners, because a prisoner retains all the rights of a free citizen except for those withdrawn by law, expressly or by implication, or those inconsistent with the legitimate penological objectives of the prison system.942 The court intervened and found the treatment that they received violated the right to be protected from inhuman, degrading or cruel punishment or treatment.
937 59F to G. 938 65H. 939 1999 (10) BCLR 1169 (ZS). 940 1173A to E. 941 1174C. 942 1174A to D.
199
This principle thereafter found application in South Africa. In the matter of Van Vuuren v Minister of Correctional Services and Others943 the court expressly adopted the modified “hands-off” approach towards matters of prison administration. The court quoted with approval the principles and reasoning elucidated in the Conjwayo944 decision.
The court referred to the residuum principle which does not accept the view that in consequence of his crime a prisoner forfeits not only his liberty but all his personal rights, except those which the law expressly grants him. The court held that the correct legal position is that all prisoner’s rights are left intact save those which are expressly removed by necessary implication. Whilst prison officials are accorded latitude in the administration of prison affairs, and prisoners are necessarily subject to appropriate rules and regulations, it is for the courts to enforce the constitutional rights of all persons including prisoners.
The application of the principle is flexible and allows for the courts to be either supportive of the executive or to grant relief to aggrieved prisoners.
In the matter of Minister of Correctional Services and others v Kwakwa945 the Minister had issued a new privilege system for prisoners that were awarded different security classifications. In essence, the unsentenced prisoners had fewer privileges than those of sentenced prisoners of the lowest security classification. This system had significantly reduced the privileges of the unsentenced prisoners. The state was unable to properly substantiate its decision. The court quoted from the Conjwayo946 decision where it was held that it was desirable that there should not be undue judicial interference in the running of prisons. The courts should respect the prison authority’s special knowledge in respect of security of prisons, rehabilitation of offenders and good order and discipline within the prison, but further, that the courts must protect the constitutional rights of prisoners. The court also quoted the
943 2012 (1) SACR 103 (CC). 944 Conjwayo v Minister of Justice, Legal and Parliamentary Affairs and Others 1992 (2) SA 56 (ZS). 945 2002 (4) SA 455 (SCA). 946 Conjwayo v Minister of Justice, Legal and Parliamentary Affairs and Others supra.
200 residuum principle with approval. The court then also recognized the principle of legality that even those rights of prisoners which are restricted as a necessary consequence of incarceration may only be limited if this is done by way of legislation, either expressly of by implication. It was further held that the laws regulating prisons in South Africa must therefore be scrutinised to see whether they provide the necessary authority for the restriction of prisoner rights. The restrictions must, in addition, be formulated sufficiently narrowly to ensure that prisoners are not exposed to overbroad discretionary powers which deny them protection of the law.947
Applying these principles the court set aside the decision of the minister, having found that he had implemented a system inconsistent with the Constitution.
In Thukwane v Minister of Correctional Services and Others948 the court was required to rule on a decision to limit the right of a prisoner to study. The authorities had refused the prisoner access to study cells, access to the internet for study purposes and the right to attend classes away from the prison grounds. The applicant was a final year LlB student and was also enrolled for an information technology course. His requests were necessary for the purpose of completing the courses of study.949
The court began by confirming the residuum principle as well as confirming the principal of legality.950 The court, however, ruled that the prison authorities created a prison and not a university campus. The prison authorities are expected to regulate issues such as prison hours, security and infrastructure and even though the court was empowered, in the appropriate circumstances to intervene, as a general rule it should respect the decision of the administrators.951
Ehrlich v Minister of Correctional Services and others952 the applicant approached the court for assistance in enforcing an order that had previously been obtained953
947 Par 26. 948 2003 (1) SA 51 (T). 949 Par 8. 950 Par 22. 951 Par 39. 952 Ehrlich v Minister of Correctional Services and Others 2008 (484/05) [2008] ZAECHC 94 < http://www.saflii.org/za/cases/ZAECHC/2008/94.html> (accessed 18-06-2013).
201 but was not being implemented by the prison authorities. He furthermore sought assistance from the court in respect of three further complaints. There were thus four broad issues in dispute. The first was that the prison in question was not serving properly prepared food at intervals of not less than four and a half hours and not more than six and a half hours as required by section 8(5) of the Correctional Services Act.954 Secondly, the prison was not providing an adequate library as was required by section 18 of the Correctional Services Act.955 Thirdly, in terms of section 38 of the Correctional Services Act956 all prisoners must be assessed according to their needs and following this, a correctional sentence plan must be completed and implemented. This is mandatory before parole can be granted. The prison was not assessing the prisoners nor implementing sentencing plans.957 The court observed that this was a possible explanation for the prison being 170% full. Finally in terms of section 41 of the Correctional Services Act958 the department must provide or give access to as full a range of programmes and activities including such needs-based programmes as are practicable to meet the educational and training needs of sentenced offenders. The prison in question provided no such programmes.959
The court held that prison administrators are responsible for securing their institutions against escape, unauthorised entry, the preservation of internal order and discipline, and rehabilitating the prisoners placed in their custody. This requires specialised knowledge and planning. The court further held that the impact of the residuum principle was that while prison officials must be accorded latitude and understanding in the administration of prison affairs, and that prisoners are necessarily subject to appropriate rules and regulations, it remains the continuing responsibility of courts to enforce the constitutional rights of prisoners. The court therefore endorsed the modified “hands off” approach.
953 Reference is made to an order granted by Erasmus J but which decision is not reported. 954 111 of 1998; par 5. 955 111 of 1998; par 7. 956 111 of 1998. 957 Par 8. 958 111 of 1998. 959 Par 9.
202 The prison did not provide programs and activities which addressed the educational and training needs of sentenced prisoners. The applicant had assisted with programmes and activities including needs-based programmes where he was previously imprisoned. He was attempting to implement his own programmes in the prison where he was currently held where programmes were in accordance with those of the Department of Correctional Services. He was motivated by the unfortunate reality of prisoners lazing about, smoking dagga and becoming involved in gangsterism during their incarceration.960
The court granted the application sought by the applicant.961
In Van Vuren v Minister of Correctional Services and Others962 the court adopted the modified “hands off” approach. It confirmed the importance of allowing prison administrators wide discretion when dealing with matters of escape or unauthorised entry, for the preservation of internal order and discipline, and for rehabilitating the prisoners placed in their custody.
The court then went on to explain that a policy of judicial restraint cannot encompass any failure to take cognisance of a valid claim that a prison regulation or practice offends a fundamental constitutional protection and endorsed the residuum principle. It was this recognition that caused the court to concentrate on the rights of the prisoner rather than to focus on the discretion of the prison officials.
The limitation of certain fundamental rights of large groups of prisoners should not be done by way of administrative action.
Thus, in August and Another v Electoral Commission and others963 the court had to decide the issue of the deprivation of the right to vote. This was the first of two such cases. In this matter, one of the factors which the court considered was that the limitation of the right to vote was the decision of the Independent Electoral
960 Ibid. 961 Par 11. 962 2010 (12) BCLR 1233 (CC). 963 1999 (4) BCLR 363 (CC).
203 Commission not to place voting booths at correctional facilities. The court held that this was an administrative decision and that a decision of such a nature could not deprive a person of the fundamental right to vote. A limitation of that nature, the court held, would require an act of parliament, and not merely an administrative decision.
Administrative law is not limited to the issue of the hands off principle, that is, the deference of the courts to the administrators. Administrative law also permeates other aspects of prison operation such as the imposition of discipline which requires that the rules of natural justice be applied before a decision is made concerning an alleged disciplinary infraction.964
9.2 AUDI ALTERAM PARTEM RULE
When making an administrative decision the audi alteram partem rule should be adhered to.
Thus, in the matter of Nortje v Minister van Korrektiewe Dienste en Andere965 an administrative decision was made to transfer the two applicants from the maximum security prison in Pretoria where they were classified as category A prisoners, and as such entitled to the greatest amount of privileges, to C-Max prison in Pretoria. The reason for their transfer to the C-max unit was the fact that they had tried on two previous occasions to escape and as such were regarded as a high risk from a security point of view.966
The complaint of the appellants was that they had been moved without first being consulted. The state contended that the reason they were not consulted before they were moved was that the conditions in C-Max are so harsh that people take extreme measures to avoid them. These would include seriously, injuring themselves or their guards since this would land them either in hospital or in the court system, both of
964 Hassim and Another v Officer Commanding, Prison Command, Robben Island and Another; Venkatrathnam and Another v Officer Commanding, Prison Command, Robben Island and Another 1973 (3) SA 462 (C); De Wet v Patch NO 1976 (2) SA 316 (R). 965 2001 (3) SA 473 (A). 966 Paras 8 to 9.
204 which provided opportunities for them to escape.967 The deputy-director of Correctional Services, who had made the decision to move the applicants, did however go and see them after moving them in order to enquire about the facility. The applicants then enquired about the reasons for their move.968
The court recognized that the differences in the quality of life between maximum security and C-max detention were of a significant nature. The court held that the Appellants were not questioning the authority of the state to act as they did in any stage of the process. The basis of their case was that the decision to move them was procedurally unfair in that audi alteram partem rule was not followed. The court held that the manner in which the audi alteram partem rule was applied, and when it should be applied, depended on the particular circumstances. It would not apply to every case where the state curtailed the privileges of a prisoner, but depended rather on whether the prisoner had a legitimate expectation of being heard. This would then depend largely on how serious the curtailing of his privileges was.969
The respondents contended that the appellants were granted a hearing after the move, relying on their discussion with the decision maker once they had been moved. The court held that the audi alteram partem rule is very flexible and how it was to be applied depended on the circumstances. The court emphasised however that the rule was concerned, not with the merits of the decision but rather with the manner in which it was taken. It was further held that the audi alteram partem rule has some basic, albeit flexible, guidelines and these included that the person be given an opportunity to state his case in order to produce a favourable result and also that he be informed of the gist of the case against him so that he can properly prepare for it. In certain circumstances, the court held this could happen after the decision was taken, but that this would be very unusual as his position would be much weaker and consequently it should only happen where it was impossible to first grant a hearing. In this matter however, the purpose of hearing the applicants regarding the decision, was only for general enquiries and consequently the decision
967 Par 11. 968 Par 3. 969 Paras 13 to 15.
205 was set aside and the prisoners were returned to the prison from which they had been transferred.970
9.3 THE ADMINISTRATIVE OFFICIAL MUST APPLY HIS MIND
When making an administrative decision, it is necessary for the prison official to apply his mind. In Du Plooy v Minister of Correctional Services and Others971 the applicant, who was a prisoner serving a sentence for armed robbery, was suffering from leukemia and was given 1 to 3 months to live.972 The medical professionals involved in treating the prisoner were of the view that he was in need of palliative care and therefore the district surgeon put the process into motion for the prisoner to be released on medical parole. Palliative care as defined by the World Health Organisation is the total care of patients whose disease is not responsive to curative treatment. Control of pain and assistance with psychological, social and spiritual problems, are paramount. The goal of palliative care is the achievement of the best quality of life for patients and families. The prison could not offer palliative care.
The parole board refused to grant the prisoner parole. The court overturned this decision. The reasons for this were, firstly, that the official who was required to make the decision had not been the person who had made the decision to refuse parole.973 Secondly, the reason for not granting parole that was tendered by the state was that the applicant was able to walk unassisted. The court held that this reasoning was irrational and unreasonable.974 Thirdly, the court found that the official had failed to take into account the values of Ubuntu.975 Thus, the court found that the official had not properly applied his mind to the decision regarding medical parole and ordered the prisoner to be placed on parole.
970 Paras 17, 18 and 20. 971 [2004] All SA 613. 972 Par 9. 973 Par 26. 974 Par 20. 975 Par 29.
206 9.4 ADMINISTRATIVE FAILURES AND DAMAGES
In terms of section 33 of the Constitution, administrative action must be lawful, reasonable and procedurally fair. The fact that a decision is procedurally unfair does not mean that it is unreasonable or unlawful.976 In Kruger v Minister of Correctional Services and Others977 the plaintiff instituted an action against the Minister for damages. The action was based on the procedurally unfair decision to move him from a normal prison to the super maximum C-Max prison in Pretoria. The plaintiff averred that he had suffered damages because he was subjected to extremely harsh conditions of detention whilst detained at C-Max prison, where conditions were significantly more severe than at the first prison. These conditions of detention involved, inter alia, solitary confinement for 23 hours per day as well as exposure to noise pollution from a radio played incessantly at a pre-set volume. He averred these conditions were inconsistent with human dignity and they constituted mental torture and trauma as well as constituting treatment or punishment that was cruel, inhuman and/or degrading.
The court held that the decision to transfer the plaintiff was procedurally unfair but that this did not mean that it was unlawful or unreasonable. The court held that the decision was lawful and reasonable because the plaintiff did represent a serious flight risk. Therefore the action failed.
9.5 LEGITIMATE EXPECTATIONS
In terms of section 3(1) of the Promotion of Administrative Justice Act978 administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair. The infringement of the rights of prisoners who have legitimate expectations was illustrated in the context of a change to parole policy by the Department of Correctional Services. When the Minister changed the policy regarding parole, which increased the length of the sentence to be served before being considered for parole, his decision was set aside
976 Nortjie en 'n Ander v Minister van Korrektieve Dienste en Ander 2001 3 SA 472 (SCA) 479. 977 (7117/02) [2005] ZAGPHC 24. 978 3 of 2000.
207 because the decision unfairly impacted the legitimate expectations of the affected prisoners.979
10. REHABILITATION AND RE-INTEGRATION
Imprisonment should be designed to rehabilitate and socially re-integrate prisoners. The purpose and justification of a sentence of imprisonment is ultimately to protect society against crime. This can only be achieved if the period of imprisonment is used to ensure, so far as possible, that the prisoner is rehabilitated and able, upon his release, to be socially re-integrated.980 Rehabilitation and re-integration are the core values of the current Correctional Services Act.981 In S v Makwanyane982 the court held that ubuntu is a fundamental constitutional value of which rehabilitation is an integral part. Rehabilitation was regarded as one of the fundamental measures by which to assess the constitutionality of the death penalty.
There are five broad principles to be applied to prisons so as to facilitate the prisoner’s reformation and social rehabilitation:
Firstly, imprisonment is an afflictive punishment in itself, by virtue of the deprivation of liberty and self-determination. Therefore the manner in which prisoners are treated should not aggravate the suffering inherent in imprisonment.983
Secondly, the differences between life in prison and the positive aspects of life at liberty shall be minimized as much as possible. A failure to do so tends to lessen the responsibility of the prisoner and fails to respect the prisoner’s dignity as a human being.984
979 Combrinck and Another v Minister of Correctional Services and Another 2001 (3) SA 338 (D); Mohammed v Minister of Correctional Services and Others supra. 980 International Covenant on Civil and Political Rights Art 10; Universal Declaration of Human Rights Art 26 that emphasizes the right to education; UNSMR Art 58; Basic Principles for the Treatment of Prisoners Art 8; EPR Rule 102(1); Germany, Prison Act s 71. 981 111 of 1998, s 1 definition of correction s 2(c), s 13(7), s 16, s 18, s 36 to s 41. 982 S v Makwanyane supra paras 241 and 260. 983 UNSMR Art 57; EPR Rule 102(2); South Africa, Correctional Services Act s 42. 984 EPR Rule 5; UNSMR 60 (1); Prison Reform International Making Standards Work: An International Handbook On Good Prison Practice 21.
208 Thirdly, prisoners shall be managed so as to facilitate their reintegration into society. They should be encouraged to lead a law abiding and self-supporting life when released back into society. The treatment shall therefore encourage their self- respect and develop their sense of responsibility.985
Fourthly, every prisoner shall be assessed to determine his security classification and his various needs – medical, educational, social, psychological, religious, development, work, and social reintegration needs. Thereafter an individualized plan must be created which contains the proposed interventions aimed at addressing the aforesaid needs of the prisoner, details of the individualized programmes that are required to rehabilitate and re-integrate the prisoner and finally the individualized treatment programme must be implemented.986
Fifthly, prior to the release of the prisoner back into free society, steps shall be taken to ensure a gradual return to society. These steps may include pre-release programmes, partial or conditional release under supervision, co-operation with social services that enable all sentenced prisoners to re-integrate themselves into society with due regard to family life and employment.987
11. IMPRISONMENT IS A PUNISHMENT IN AND OF ITSELF
Imprisonment is a punishment in and of itself and therefore conditions of imprisonment shall not aggravate the suffering inherent in imprisonment. This rule is a fundamental rule of international prison law and is a logical corollary of the rule that any limitation of a prisoner’s rights is to be the minimum necessary and proportionate to the legitimate objective for which the limitation is imposed.988
The rule has been expressed as placing an obligation upon the authorities not to cause distress to prisoners that exceed the unavoidable levels of suffering inherent in
985 UNSMR Art 65; EPR Rule 6; South Africa, Correctional Services Act s 2(c). 986 UNSMR Art 63, Art 65 and Art 66; EPR Rules 103 and 104; South Africa, Correctional Services Act s 16, s 36 and s 41; South Africa, Correctional Services Regulations s 10 and s 14; Malawi, Prisons Bill s 43; Corrections And Conditional Release Act s 76 and s 77; Peru, Penitentiary Code 1991 Art 61; Germany, Prison Act s 71. 987 UNSMR Art 79, Art 80 and Art 81; Malawi, Prisons Bill s 42(3). 988 S 4(2)(b) Correctional Services Act.
209 imprisonment.989 The deprivation of liberty and self-determination is the punishment and prison is not a place where the prisoner is to be punished. Therefore the prison system shall not, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation.
Imprisonment should not include any additional punitive elements,990 since imprisonment is by its very nature afflictive by depriving a person of the right of self- determination and by depriving him of his liberty. The manner in which prisoners are treated shall not aggravate the suffering inherent in imprisonment.991
Thus, prisoners are sent to prison as punishment and not for punishment and the method in which they are cared for and treated must therefore not be punitive.992
This rule finds expression in section 4(2)(b) of the Correctional Services Act993 which provides that the duties and restrictions imposed on prisoners are there to ensure safe custody by maintaining security and good order. The restrictions must be applied in a manner that conforms with their purpose, which does not affect the prisoner’s rights to a greater degree or for a longer period than is necessary.
There has unfortunately been a tendency in our law to make remarks, albeit obiter, that it should be accepted that prison is a “black place” and that prisoners are not entitled to all the comforts that they enjoyed prior to their incarceration.994 There are three difficulties with this line of reasoning:
989 Raffray Taddei v France (36435/07) (2010)
210 • There is a suggestion that society demands that prisons are places of suffering, that is, in addition to the deprivation of freedom, there should be an additional element of suffering, in that the prison should be a bleak experience. This is contrary to the international legal position and contrary to the Correctional Services Act.995
• There is a further suggestion that if this element of deprivation is not present, prisons will lose their deterrent effect. People will trade their freedom and family life for the luxuries of prison and therefore be more willing to commit crime. Apart from being a somewhat jaundiced view of human nature, there appears to be no factual basis for it.
• If there is no evidence that this additional deprivation furthers the ends of punishment, namely rehabilitation or deterrence, it violates the fundamental rights of prisoners to equal treatment,996 as well as the residuum principle.
12. RESTRICTIONS SHALL BE THE MINIMUM NECESSARY
Restrictions placed on prisoners shall be the minimum necessary and shall be proportionate to the legitimate objective for which they are imposed.997
This rule also appears in the Correctional Services Act998 which provides that the duties and restrictions imposed on prisoners to ensure safe custody by maintaining security and good order must be applied in a manner that conforms to their purpose and which does not affect the prisoners to a greater degree or for a longer period than necessary.999
995 111 of 1998. 996 S 9 and s 25 of the Constitution. 997 Coyle A Human Rights Approach to Prison Management 169; EPR Rule 2; UNSMR Art 57; EPR Rule 49; The Kampala Declaration On Prison Conditions In Africa Art 2; South Africa, Correctional Services Act s 4(2)(b); Germany, Prison Act s 81. 998 111 of 1998. 999 S 4(2)(b).
211 This rule is a manifestation of the principle of legality as well as the residuum principle that provides that a prisoner retains all the basic rights and liberties of an ordinary citizen except those taken away from him by law, expressly or by implication, or those necessarily inconsistent with the circumstances in which he, as a prisoner, is placed.
Furthermore, it is also a manifestation of section 36(1) of the Constitution which requires that the rights in the Bill of Rights may be limited only in terms of law of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.
13. PROPORTIONALITY
Prisoners are punished by being deprived of their liberty and self-determination.1000 No further restrictions on prisoners which will increase the suffering inherent in this form of punishment is permitted.1001 The duties and restrictions to which the prisoner is subject are there to guarantee his safe custody by maintaining security and good order in the prison.1002 The principle of proportionality applies in that the restrictions must be applied in a manner that conforms with their purpose and do not affect the prisoners to a greater degree or for a longer period than is necessary.1003
This position is confirmed by section 4(1)(b) of the Correctional Services Act which states that the duties and restrictions imposed on prisoners to ensure safe custody by maintaining security and good order must be applied in a manner that conforms with their purpose and which does not affect the prisoners to a greater degree or for a longer period than necessary.
1000 South Africa, Correctional Services Act s 2(a). 1001 Coyle A Human Rights Approach to Prison Management 13; The Kampala Declaration On Prison Conditions In Africa Art 4. 1002 UNSMR Art 27; EPR Rule 49; South Africa, Correctional Services Act s 4(2)(a). 1003 Coyle A Human Rights Approach to Prison Management 169; EPR Rule 2; UNSMR Art 57; EPR Rule 49; The Kampala Declaration On Prison Conditions In Africa Art 2; South Africa, Correctional Services Act s 4(2)(b); Germany, Prison Act s 81.
212 This provision ensures that prison administration is consistent with section 36 of the Constitution.1004
This principle applies to all limitations of prisoner rights. Therefore when controlling violent prisoners, the use of force must be resorted to only when other forms of intervention have failed and then only minimum force should be employed and for the shortest duration of time.1005 Similarly when instruments of restraint are applied they shall not be of a more severe nature than is required nor shall they be applied for a longer time than is necessary.1006
14. ARBITRARINESS
Prisoners are entitled to protection against arbitrary action by the state.
This protection appears in three places in the Bill of Rights. Section 12 provides that no-one shall be deprived of freedom arbitrarily or without just cause. Section 25 provides that no law shall provide for the arbitrary deprivation of property. Section 26(3) provides that no legislation shall provide for arbitrary evictions.
Protection against arbitrariness is further supported by section 9 of the Constitution which provides that everyone is equal before the law and has the right to equal protection and benefit of the law. Furthermore, no unfair discrimination against any person is permitted.
Therefore, punishment is to be administered consistently and not arbitrarily or capriciously. In other words, the degree of suffering experienced by an offender should not be substantially different from that suffered by any other offender who is found guilty of similar crime. Where the degree of suffering experienced by offenders who have committed substantially the same offence varies significantly, this will be a
1004 Ehrlich v Minister of Correctional Services and Others 2009 (2) SA 373 (E). 1005 Coyle A Human Rights Approach to Prison Management 37; Van Zyl Smith South African Prison Law and Practice 182; EPR Rule 64(2); UNSMR 54; South Africa, Correctional Services Act s 32. 1006 EPR Rule 66; UNSMR Art 33; South Africa, Correctional Services Act s 31(3)(b).
213 significant consideration when deciding upon the constitutionality of the “type of punishment”. 1007
Furthermore, limitations on the rights of offenders must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. Therefore the limitations must be rationally connected to the objective.1008
The principle of legality requires that the legislature and the executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. They are furthermore governed by the rule of law which provides that the exercise of public power by the executive and other functionaries should not be arbitrary.1009
Consequently, in terms of section 6(1)(e)(vi) of the Promotion of Administrative Justice Act1010 a court or tribunal has the power to judicially review an administrative action if the action was taken arbitrarily.
Ubuntu places a high value place on compassion and human dignity. This in turn implies that punishment is not to be arbitrary.1011
This raises the question whether prisoners who serve the same period of imprisonment for the same offence but who experience substantially different conditions of detention can be said to have experienced arbitrary action on the part of the state. This problem has implications for the period of sentence. It is submitted that someone who serves ten years in a low security prison has experienced substantially less suffering than someone who has served ten years in isolation in a super maximum facility. Similarly, those who have experienced prison rape due to negligence on the part of prison guards have experienced substantially more suffering than those who have not been so raped.
1007 S v Williams supra paras 45 and 89. 1008 S v Makwanyane supra. 1009 Mohammed v Minister of Correctional Services and Others supra. 1010 3 of 2000. 1011 S v Makwanyane supra.
214
15. THE BENEFICENT STATE PRINCIPLE
There is a particular value underlying the Constitution that has been identified in various cases and this is the role of the state in punishment. This role is that of one who administers punishment in a caring manner, with the aim of restoring the individual to the community, with the state as the good teacher. For the sake of convenience this will be referred to as the “beneficent state” principle.
In the Namibian case of S v Tcoeib1012 the court was required to decide whether a conviction of a sentence to life imprisonment was unconstitutional because it violated the prohibition on torture or cruel, inhuman or degrading treatment or punishment.
The court held it was not per se of such a nature but if, in a particular case, the sentence was grossly disproportionate to the crime and it induced a sense of shock then it would amount to a violation of the Constitution. Furthermore, the reason that it did not per se violate the relevant constitutional provisions is that although life imprisonment normally meant for the rest of the natural life of a person, there was nevertheless provision for parole and executive pardon.
The court held that the provision for parole meant that the individual was not dehumanized and that hope for release was retained. The court held that a culture of despair was inconsistent with the deeply humane values articulated in the preamble and the text of the Namibian Constitution which contained the vision of a caring and compassionate democracy.
This view of a caring and compassionate democracy was again invoked in the Namibian matter of Namunjepo and Others Commanding Officer, Windhoek Prison and Another,1013 where the court held that the practice of detaining awaiting trial offenders in leg irons, if they had escaped on a previous occasion, constituted cruel, inhuman or degrading punishment or treatment. The court stated that these values, that is, those of a compassionate democracy that cares for the conditions of its
1012 1996 (7) BCLR 996 (NmS). 1013 2000 (6) BCLR 671 (NmS).
215 prisoners, is an integral element in the rehabilitation of prisoners. This is the case because it induces in them a consciousness of their dignity, a belief in their worthiness and hope in the future.1014
In S v Williams and Others1015 the court found similar values underlying the South African Constitution. The court was called upon to decide the constitutionality of a particular form of punishment. The court held that the state as a role model par excellence must treat those who are weakest and the most vulnerable in society in a manner that does not diminish, but rather enhances, their self-esteem and human dignity. If this is not done then the danger increases that offenders’ regard for a culture of decency and respect for the rights of others will be diminished. The court further held that the government is the potent, the omnipresent teacher that leads all people by its example.1016
This reasoning applies to imprisonment as a form of punishment since it has been held that prisoners are amongst the most vulnerable members of society.1017
16. PRISONERS’ AVENUES OF PROTECTION, REDRESS AND REMEDIES
16.1 DAMAGES
If the constitutional rights of a prisoner have been infringed in the United States of America, the prisoner will generally institute action under Title 42 of the United States Code in section 1983. Section 1983 cases are brought whenever defendants are alleged to be “deliberately indifferent” to the rights of the prisoner and the court may, if this is established, order damages, including punitive damages.1018 The other route in the USA is a tort case in which the plaintiff must establish negligence and civil rights issues are not relevant, but ordinary standards of care are the standard by which the defendant’s actions are measured. The standard is higher in section 1983
1014 Par 18. 1015 1995 (3) SA 632 (CC). 1016 647B – D. 1017 Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA). 1018 Hill v Marshall 962 F.2d 1209 (6th Cir., 1992).
216 cases but only ordinary damages can be awarded in a tort case.1019 In Europe the usual remedy for violations of the fundamental rights of prisoners is that of an award of money.1020
The South African position is more complex. There is a remedy in delict for damages suffered as a result of the act or omission of the prison officials which is negligent and wrongful and which caused harm.1021
There is, in addition, the possibility of constitutional damages being awarded. In terms of section 38 of the Constitution, a court is empowered to grant appropriate relief when it concludes that a breach or threatened breach of a person’s rights under the Bill of Rights has been established. This provision is mirrored in section 172, of the Constitution which similarly empowers a court when deciding a constitutional matter within its jurisdiction, to grant just and equitable relief.
The ability of the court to sculpt remedies appropriate to the circumstances was illustrated in President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd.1022 In this matter 40,000 unlawful occupiers occupied a portion of privately owned farmland. The owner, Modderklip Boerdery (Pty) Ltd, launched an application eviction under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.1023 The High Court granted the eviction order but the occupiers refused to vacate the land. The assistance of the sheriff was sought but he wanted a deposit of R2.2 million in order to carry out the eviction. The landowner then applied a second time to the High Court seeking an order that the state pay the costs of eviction as they had a duty to protect his property and that they provide the occupiers with alternative land. The state opposed the application arguing that it was
1019 Tucker v Evans 276 F.3d 999 (8th Cir. 2002). 1020 Piechowicz v Poland (application no. 20071/07) and Horych v Poland (application no. 13621/08),(17-04-12) European Court of Human Rights
217 not obliged to assist in the execution of civil orders and it was not obliged to provide land to illegal occupiers as it had a land policy and priorities. The court then made an order that the Department of Agriculture and Land Affairs pay compensation to the applicant in respect of the land occupied. The court allowed the occupiers to continue occupying the land until alternative accommodation was made available. The amount of the compensation was to be calculated in a manner set forth in section 12(1) of the Expropriation Act1024 for the period of occupation. However, there was no actual expropriation of the property nor was this ordered. Thus, the court was ordering the state to pay damages to the applicant because his constitutional rights had been violated.
The possibility of constitutional damages was raised in the matter of Minister of Correctional Services v Lee,1025 but this was only done upon appeal and not in the court of first instance. The Court of Appeal was not prepared to allow the additional category of damages because it would entail the presentation of new evidence. In Fose v Minister of safety and Security1026 constitutional damages were claimed but refused. The court held that this was in the nature of punitive damages that would be awarded to a person whose constitutional or fundamental rights had been infringed. In this case the plaintiff had been assaulted and tortured by members of the police. The court held that an award of this nature could in principle be granted but only where it was necessary to protect and enforce a constitutional right and act as a deterrent against future abuses. The purpose of the award was accordingly to be a deterrent.
In M and Another v Minister of Police of the Government of the Republic of South Africa1027 the plaintiffs were the mothers of two minor children who instituted action for damages suffered by them as a result of the unlawful death of their husband and father of the minors. The father, who was the family care giver or breadwinner, died after sustaining serious injuries during detention by the police. The Plaintiffs claimed in their personal capacities as well as in their capacities as mothers and natural
1024 63 of 1975. 1025 2012 (3) SA 617 (SCA). 1026 1997 (7) BCLR 851 (CC). 1027 2013 (5) SA 622.
218 guardians of the deceased’s minor children. There were two broad areas of loss claimed for, namely, common law damages for the Plaintiffs’ loss of support, as well as loss of comfort, society and services and a claim for constitutional damages on the grounds that the children were, as a result the unlawful death of their father, deprived of the constitutional right to parental care.
The father, pursuant to a dispute about the rims of a motorvehicle, was locked up in a police cell that had 19 prisoners. Several of the prisoners assaulted him during the night by kicking him several times on his back and ribs while others were singing to drown out the noise. As a result of this assault, he sustained serious injuries. It emerged that the father was innocent of any wrongdoing and was accordingly released. The father then subsequent to his release died from the injuries sustained by him during that assault.
The court held that the state was liable to compensate the minor children of the deceased for the proven constitutional damages arising out of the unlawful deprivation of their father’s parental care.
Thus the South African courts have expressly recognized the right of minor children to claim for loss of parental care following the negligent death of a parent in custody.
Delictual damages in our law appear to be problematic where prisoner rights are concerned. In the matter of Minister of Correctional Services v Lee,1028 the court found that the violation of the prisoner’s rights to safe custody had been violated and as a result he had contracted TB. However, since the plaintiff was relying upon the systemic failings, or omissions, of the prison services the manner in which he had to prove causation was by way of the application of the sine qua non test. The court found that even if the state had properly discharged its obligations, he may still have contracted TB and therefore he had not proved his case. This was subsequently rejected by the Constitutional Court1029 that adopted a common sense or robust type of approach to the sine qua non test and found causation proved.
1028 2012 (3) SA 617 (SCA). 1029 Lee v Minister of Correctional Services 2013 supra.
219 However, since human right violation cases in the prison environment are framed within the context of delict, causation needs to be proved. Thus in Kruger v Minister of Correctional Services and Others1030 the court found that the plaintiff had been subjected to cruel, inhuman and degrading punishment by detaining him in a cell in C-Max prison in Pretoria in solitary confinement for 23 hours a day. However, the court held that it was the fault of the prisoner for not making use of psychologists at his disposal to alleviate his mental anguish. This was despite the fact that the plaintiff had presented expert psychological evidence showing that the conditions of detention were not fit for human habitation from a psychological standpoint.
From the above cases it can be seen that prisoners may often struggle to prove causation. Prisoners usually have limited resources and little access to the civil litigation system. Therefore, in the absence of significant developments in the area of constitutional damages, where the prisoner is compensated by the state for the mere violation of his fundamental rights, possibly on some scale where the extent of the award depends upon the extent of the violation, prisoners may struggle to obtain compensation for violations of their constitutional rights.
This level of risk in litigation also makes it unlikely that they will find assistance in pursuing claims of this nature. This problem has been recognized in the United States of America where protection is guaranteed by the Fourteenth Amendment. The courts there have gone beyond merely permitting a prisoner to bring an action, in addition, they have ruled that the prison authorities are under an obligation to assist the prisoners in bringing such an action. This is to ensure that the prisoner’s access to court can be meaningful and this includes the obligation to provide a properly stocked legal library or legal assistance of some sorts, whether a paralegal or an attorney.1031
1030 (7117/02) 2005 ZAGPHC 24 (2 March 2005) SAFLII
220 16.2 INTERDICTS
An interdict is an order granted by a court to direct the future conduct of a person or organization in order to prevent the violation of a right and is well suited to constitutional remedies.1032
President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd1033 illustrates that our courts have the power to sculpt creative remedies and these wide ranging powers are set forth in section 38 and section 172 of the Constitution.
The types of orders that have been sculpted in foreign jurisdictions include damages (including constitutional damages),1034 population caps1035 (also known as bursting provisions), an order correcting the violation, the appointment of special masters either to a particular prison or a whole prison system,1036 pilot judgments (a type of structural interdict),1037 the release of prisoners,1038 an order directing that prisons no longer accept detainees once capacity has been reached or potentially even raising taxes to provide funds to remedy conditions.1039
Internationally these remedies tend to be graded, in the sense that if the mischief has been remedied prior to legal action by the prisoner, then usually a damages order will suffice. If the mischief is ongoing, then a mandamus type interdict is appropriate but if the problem is systemic or if the mischief is simply not remedied by the authorities, then more drastic steps should be ordered such as a pilot judgment or the appointment of a master. It is only after these fail that the courts tend to issue release orders or population caps.
1032 City Council of Pretoria v Walker 1998 (2) SA 363. 1033 2005 (5) SA 3 (CC). 1034 X v Turkey (no. 24626/09) (2012). 1035 Brown v Plata (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2- 03-2013). 1036 Ibid. 1037 Torreggiani and Others v Italy (application no. 43517/09) (2013) http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115860 (accessed 26-03-2013). This would be similar to a structured interdict in South Africa. 1038 Stone v San Francisco supra. 1039 Missouri v Jenkins supra.
221
The above mentioned remedies, other than damages, would typically fall within the South African concept of interdict.
An interdict declaring the conduct of the prison authorities unlawful and ordering that they remedy the failure was illustrated in the matter of B and Others v Minister of Correctional Services and Others1040 where the court granted an order to HIV positive prisoners in Pollsmoor Prison ordering the prison authorities to provide the prisoners with ARVs of a superior type to that provided to the general public at state hospitals. This type of order would constitute a mandamus.
An interdict was issued in the matter of Pretorius v Minister of Correctional Services1041 where the court ordered that noise pollution of the applicant’s environment cease because the nature of the noise pollution was violating the applicant prisoner’s fundamental rights.
A structural interdict is a court order which directs the violator to rectify the violation of the fundamental rights of the applicant, in these cases the prisoner, under supervision of the court.1042 There are several examples of these types of interdict in the context of prisoner rights. The first is EN and Others v Government of RSA and Others1043 where the court ordered a structural interdict that required the prison authorities to remove the restrictions that prevented the applicants, who met the criteria as set out in the National Department of Health’s Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa, from accessing anti-retroviral treatment at an accredited public health facility. The court further ordered that the applicants be provided with the relevant ARV medication. In addition the prison authorities were required to lodge an affidavit with the court setting out the manner in which it would comply with the order and allowing the applicants to comment thereon.
1040 1997 (6) BCLR 789 (C). 1041 2004 (2) SA 658 (T). 1042 Currie and De Waal The Bill of Rights Handbook 5th ed (2005) 217. 1043 2007 (1) BCLR 84 (D).
222 In the matter of August and Another v Electoral Commission and others1044 the court ordered that provision be made for prisoners to register as voters and that provision be made for them to vote on the relevant dates. In addition the court required the respondents to lodge an affidavit setting out the manner in which it would comply with the first set of orders.
In Ehrlich v Minister of Correctional Services and others1045 the prison authorities were required to re-instate a karate development programme. The court furthermore required the prison authorities to file affidavits, two weeks after the order was issued, stating that they had complied with the order.
These types of interdicts are similar to what are referred to in Europe as pilot judgments. For example in Torreggiani and Others v Italy1046 the court ordered that solutions be found to the systemic problem of overcrowding in Italy. The court did not prescribe how the state was to do this but issued an initial order requiring them to do so with a return date within one year whereafter the order would become final.
South African law contemplates the appointment of officers of the court to carry out certain functions of the court. Examples of these include trustees of insolvent estates,1047 partnerships and the estates of persons getting divorced. Their appointment is by court and they are ultimately responsible to the court for the proper discharge of their duties who may remove them from office.1048
In South Africa a civil search, seizure and preservation of evidence procedure exists which is generally known as an Anton Piller1049 order. In this process generally the court orders the sheriff to search for, then seize and preserve1050 evidence which is material to a matter. It will be employed where the applicant justifiably believes the respondent may destroy the evidence if no order is granted.
1044 1999 (4) BCLR 363 (CC). 1045 2009 (2) SA 373 (E). 1046 (Application no. 43517/09) (2013). 1047 Enyati Resources Ltd v Thorne 1984 (2) SA 551 (C) 556. 1048 Smith The Law of Insolvency 3rd ed (1988) 191, 200. 1049 Anton Piller KG v Manufacturing Processes Limited [1976] Ch 55. 1050 Vis v Minister of Correctional Services and Others 2013 (1283/2013) [2013] ZAFSHC 101< http://www.saflii.org/za/cases/ZAFSHC/2013/101.html> (accesses 22-07-2013).
223
The importance of this order in this context is the role of the supervising attorney. As in the case of a liquidator of the estate of a partnership or a marriage, the attorney acts as the representative of the court to ensure that the order of the court is properly carried out and he then files a report at court detailing the manner of the search and seizure, what documents were collected and handed to the sheriff.
It is in much the same manner that the courts in the United States of America have appointed special masters to operate prisons under the supervision of the court, or even an entire prison system of a state, where the state itself was not remedying faults in the prison or prison system.1051 It may be that an order of this nature may be employed in South Africa should the need arise given the wide powers of the court to sculpt a remedy.
The proposal is that if there is a particular violation of the fundamental rights of prisoners, the court may appoint an independent third party or parties to assist the court in remedying the violation. This will be different to the structural interdicts discussed elsewhere in this study. With a structural interdict, typically the court orders that a violation be addressed and that the party who was ordered to take action file an affidavit at a later stage detailing the manner of their compliance.
These types of orders would be of assistance for example with defective prison health systems where an independent doctor could be appointed to oversee the health system. This procedure could also be employed in the context of alleged corruption where forensic specialists be appointed to address corruption in the prison system. Where overcrowding is to be addressed, conceivably attorneys could be charged by the court to ensure the distribution of prisoners amongst different prisons in a manner consistent with their right to community contact.
This type of relief would violate the “hands-off” approach and would therefore not be employed as a first resort. In the matter of Motsemme v Minister of Correctional
1051 Palmer Constitutional Rights of Prisoners 393; Brown v Plata USSC (2011) http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf (accessed19-04-2013).
224 Services and Others1052 the court was loathe to get directly involved in the final decision of the parole board. However, where it was clear to the court that the parole board was not willing to properly discharge its functions, the court then made the final decision to grant parole.1053 It is submitted that because of the drastic nature of this type of relief, it would only be granted where there is an ongoing and consistent failure to respect the fundamental rights of prisoners.
Population caps and bursting provisions are tools that can be employed either directly or indirectly by the courts. In the matter of Brown v Plata1054 the United States Supreme Court confirmed the decision of the Federal Court in California where an order had been issued limiting the number of prisoners in the system. The federal court had found deficiencies in the prison system including inadequate medical screening of incoming prisoners, delays in or failure to provide access to medical care, failure to respond to medical emergencies, poor quality of, and inadequate number of, medical and other staff, lack of proper medical records and general disorganization and absence of proper communicable disease management. The court confirmed a population cap of 137.5%, which meant that the California correctional system was obliged to release approximately 40 000 of 150 000 prisoners.
In South Africa there is a bursting provision in section 81 of the Correctional Services Act,1055 which provides that if a Minister is satisfied that the correctional centre population in general or at a particular correctional centre is reaching such an extent that the safety, human dignity and physical care of the prisoners are being affected materially he is obliged to take steps to release certain categories of prisoners. The remedy is couched in terms of community corrections and parole. It is submitted that it is possible that if the Minister fails to properly exercise his discretion, he can compelled by a court to properly exercise his discretion and release prisoners.1056 This remedy has not yet been applied in South Africa.
1052 2006 (2) SACR 277 (W). 1053 Vida infra. 1054 (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2-03-2013). 1055 111 of 1998. 1056 Stanfield v Minister of Correctional Services and Others supra.
225 In a pilot judgment of the ECtHR1057 the court required the state to co-operate with the Committee of Ministers of the Council of Europe, within six months from the date on which the judgment became final, on a binding time frame for resolving the problems caused by overcrowding. One of the requirements which the court specified was that the person in charge of the relevant prison would be empowered to refuse to accept prisoners beyond the prison’s capacity. It is submitted that this may be a remedy which could be employed in South Africa.
16.3 DECLARATIONS OF INVALIDITY
In terms of section 172 of the Constitution, courts in constitutional matters must1058 declare any law or conduct that is inconsistent with the Constitution to be invalid to the extent of its inconsistency and may make an appropriate remedial order.
This was demonstrated in the matters of S v Makwanyane1059 and S v Williams1060 which concerned the imposition of the death penalty for non-treasonable offences, in the former, and corporal punishment for juvenile offenders in the latter. These are referred to as the “type of punishment” cases. In the former section 277(1)(a) of the Criminal Procedure Act,1061 the death penalty was a competent sentence for murder. The court struck down this provision. Similarly in S v Williams1062 section 294 of the Criminal Procedure Act1063 which provided for the corporal punishment of juvenile offenders, the court declared the provision invalid.
In S v Niemand1064 the court was called upon to decide the constitutionality of section 65(4)(b)(iv) of the Correctional Services Act,1065 read with section 286 of the Criminal
1057 Ananyev and Others v Russia 2011 (application nos. 42525/07 and 60800/08) http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx#{"display":["1"],"dmdocnumber": ["898156"]} (accessed 19-06-2013). 1058 S 172(1)(a). 1059 1995 (3) SA 391. 1060 1995 (3) SA 632. 1061 51 of 1977. 1062 1995 (3) SA 632. 1063 51 of 1977. 1064 2001 (11) BCLR 1181 (CC). 1065 111 of 1998.
226 Procedure Act,1066 which provided that a person convicted of an offence and who has been declared a habitual criminal would be incarcerated for an indeterminate period of imprisonment but at least for 7 years. The court found this provision for an indeterminate sentence to be unconstitutional. The court then amended the section so that it provided for a maximum period of imprisonment of 15 years.
In terms of section 12(1) of the Correctional Services Act,1067 the department must provide, within its available resources, adequate health care services, based on the principles of primary health care, in order to allow every prisoner to lead a healthy life. This provision, prima facie, limits the obligation of the state to provide health care within its resources and, it will be submitted, may well violate the constitutional guarantee provided for in section 35(2)(e) of the Constitution. That provision requires conditions of detention that are consistent with human dignity, including the provision of medical treatment at the state’s expense. This section therefore may be declared invalid.
The justification for the submission regarding the potential declaration of invalidity is premised upon the unique position of vulnerability and dependence of prisoners upon the state. This issue and the potential defence of insufficient resources of the state has been debated above.1068 Furthermore in B and Others v Minister of Correctional Services and Others1069 the court granted an order to HIV positive prisoners in Pollsmoor Prison ordering the prison authorities to provide the prisoners with ARVs of a superior type to that provided to the general public at state hospitals. The decision was based, in part, upon the unique position of vulnerability and dependence of prisoners upon the state.
16.4 THE RIGHT TO LEGAL ASSISTANCE
The right to have disputes that can be resolved by the application of law decided upon in a fair public hearing before a court or, where appropriate, another
1066 51 of 1977. 1067 111 of 1998. 1068 See s 4 of this chapter supra. 1069 1997 (6) BCLR 789 (C).
227 independent and impartial tribunal or forum, is enshrined in section 34 of the Constitution. As has been illustrated above, there a several possible legal remedies that are available to prisoners when their fundamental rights are limited in a manner that is not justifiable. Given the unique and vulnerable position of prisoners, it is submitted, this places a positive obligation on the state to make available resources to the prisoner to prepare his case for hearing before such a court or tribunal.
In the United States of America this protection is guaranteed by the Fourteenth Amendment. The courts in the United States of America have gone beyond merely permitting a prisoner to bring an action. In addition, they have ruled that the prison authorities are under an obligation to assist the prisoners in bringing such an action. This is so that their access to court can be meaningful and this includes the obligation to provide a properly stocked legal library or legal assistance of some sorts, whether a paralegal or an attorney.1070 It will be submitted that prisoners in South Africa have a similar right. This right is to be distinguished from the type of legal aid provided for in a pending criminal hearing.
This point has not been canvassed fully before our courts. However, in the matter of Van Vuuren v Minister of Justice and Constitutional Development and Another1071 the court indirectly dealt with the point. The applicant was serving a life sentence pursuant to a conviction for the commission of certain violent crimes. The initial policy of the parole board was to consider such prisoners for release on parole after ten years but the norm was to only release them on parole after 15 years. In 1994 the policy changed to only release such prisoners on parole after 20 years. The applicant was sentenced before the current Correctional Services Act1072 came into effect and as such he would now spend five years longer in prison than he initially expected. He sought to have the relevant policy by the department set aside. The court refused to hear the matter as a court first instance but referred the matter to the relevant Law Society to appoint someone to assist the applicant to properly formulate his case. In other words, the court ordered, that the prisoner be given legal assistance to assist him in properly preparing his civil case.
1070 Bounds v Smith supra; Lewis v Casey supra. 1071 2007 (8) BCLR 903 (CC). 1072 111 of 1998.
228
17. THE RIGHT TO PAROLE
The purpose of this section is not to detail the full law relating to parole nor to restate the provisions of the Correctional Services Act.1073 The purpose is to consider the case law that relates to prisoner rights in the context of parole. The provisions of the Act may be detailed where this is necessary as background for the discussion.
17.1 NON-MEDICAL PAROLE
Parole serves certain purposes and these include being a form of punishment that is an alternative to imprisonment, a means of rewarding offenders for complying with their sentence plan and participating in rehabilitation programmes. It is also a means for the gradual re-integration of offenders into society. In regard to life imprisonment, the Supreme Court of Appeals held life imprisonment is saved from being cruel, inhuman and degrading punishment by the possibility of parole.1074
The granting of parole falls within the powers of the executive authority and is not a power which the court ought to attempt to circumvent.1075 Thus in S v Nkosi (1); S v Nkosi (2); S v Mchunu1076 the court set aside the decision of a magistrate who attempted to impose conditions, including limits on parole and held that the penological realities and theory are beyond the knowledge of most legal practitioners. Consequently the court must not be permitted to influence parole conditions as this is the field of specialty of the Department of Prisons (as it then was).
Furthermore parole,1077 like a presidential pardon,1078 is a privilege and not a right.
1073 Ibid. 1074 S v Bull and Another; S v Chavulla and Others 2002 (1) SA 535 (SCA). 1075 S v Smith 1996 (1) SACR 250 (E). 1076 1984 (4) SA 94 (T). 1077 Motsemme v Minister of Correctional Services and Others 2006 (2) SACR 277 (W). 1078 Kruger v Minister of Correctional Services and Others 1995 (2) SA 803.
229 Section 75(1) of the Correctional Services Act1079 outlines the bodies created to deal with parole applications and these are the Correctional Supervision and Parole Board (CSPB) and the Correctional Supervision and Parole Review Board (CSPRB).
The CSPB decides whether to grant parole to a prisoner based upon on a report submitted to it by the Case Management Committee in respect of a prisoner serving a determinate sentence exceeding 12 months. The CSPRB is empowered to review the decision of the CSPB should a submission be made to it by the relevant person. In respect of dangerous criminals, the CSPB will make a recommendation of parole to the relevant court which makes the decision whether to place the prisoner on parole1080 and similarly, in respect of prisoners serving life sentences, the CSPB will make a recommendation to the Minister who will decide whether to grant parole.1081
How much of the sentence must be served by the prisoner prior to being considered for parole depends on the sentence imposed upon the offender by the sentencing court. Firstly, a prisoner serving a determinate sentence or cumulative sentences of not more than 24 months may be placed on parole if he has served a quarter of the sentence.1082
Secondly, a sentenced prisoner serving a determinate sentence or cumulative sentences of more than 24 months may be placed on parole if he has served half of the sentence. However, where the prisoner has served 25 years of a sentence or cumulative sentences then he must be considered for parole.1083
Thirdly, the sentencing court is empowered to impose a non-parole period of imprisonment.1084 If a court sentences a person convicted of an offence to imprisonment for a period of two years or longer, the court may as part of the sentence, fix a period during which the person shall not be placed on parole. Such period shall be referred to as the non-parole-period, and may not exceed two thirds
1079 111 of 1998. 1080 S 75(1)(b) of the Correctional Services Act 111 of 1998. 1081 Ibid. 1082 S 73(6)(aA) of the Correctional Services Act 111 of 1998. 1083 S 73(6)(a) of the Correctional Services Act 111 of 1998. 1084 S 276B(1) of the Criminal Procedure Act 51 of 1977.
230 of the term of imprisonment imposed or 25 years, whichever is the shorter. The Correctional Services Act1085 provides both in section 73(6)(a) and (aA) that a prisoner serving a determinate sentence may not be placed on parole until such a prisoner has served the non-parole period.
There is no right to parole and it is a privilege. However, there are instances where the prisoner has a legitimate expectation of consideration for parole or parole itself. This emerged from several cases that followed the change in policy on the part of the Department of Correctional services in about 2000. The department changed the parole policy from only considering a prisoner for parole after serving half the sentence to two thirds of the sentence.
Initially in our law, prior to the introduction of the current Constitution and the Interim Constitution which preceded it, there was little or no power to challenge the decisions of a parole board other than on the narrow grounds of review as they then stood. Thus, in Smith v Minister of Justice1086 the court refused to review the decision of the Advisory Release Board where the board refused to release a prisoner who was suicidal. The court held that the decision to release either unconditionally, on probation or on parole is the decision of the State President, on the advice of the Minister of Justice. The minister in turn depends upon the recommendations of the Advisory Release Board. The court held that the applicant had a right to be heard. It was not necessary, however, for an oral hearing and written submissions were sufficient. The court held that once the Advisory Release Board had properly made a decision it was then functus officio. The only person with the power to release a prisoner on parole was the sovereign since it was a privilege and not a right.
This position changed when prisoners became entitled to lawful, reasonable and procedurally fair administrative action. In Combrinck and another v Minister of Correctional Services and Another1087 the applicants, who were sentenced to prison in 1998, had their legal position governed by section 21 of the Correctional Services
1085 111 of 1998. 1086 1991 (3) SA 336 (T). 1087 2001 (3) SA 338 (D).
231 Amendment Act.1088 In terms of this section they would only be eligible for consideration on parole after serving half of their sentence. In April 1998 a policy document was issued in terms of which a concept of “penalisation” was introduced.1089 It was done for the sake of consistency in parole policy and in an effort to guide the discretion of parole boards. In terms of the policy the board could consider the application for parole in the normal course (ie after half the sentence is served less credits) but that it could not be granted until at least a certain further portion was served depending on the nature of the crime as set out in the penalisation periods referred to in the policy document.1090 The court held that every person has a right to fair administrative action as set out in section 33(1) of the Constitution and that the policy document was an administrative act. Thus, even though parole is a privilege and not a right, in this case the prisoners had a legitimate expectation, after serving half of their sentence, that they would be considered for parole. This was based on existing criteria and guidelines and these in turn motivated good behaviour and rehabilitation. The policy document altered this position and did so, in effect, retrospectively.1091 It was held that the prisoner had a legitimate expectation of being considered for parole after serving half of his sentence and that the guideline retrospectively altered that. This then violated their right to fair and just administrative action.1092
This reasoning was not followed in Winkler v Minister of Correctional Services1093 where the applicants had applied for parole and were in the process of obtaining their release. Whilst involved in this process the National Commissioner for Correctional Services issued a policy directive which prescribed, amongst others, that if a prisoner was sentenced for a serious economic offence he was not to be eligible for parole until he had served two thirds of his sentence.1094 Section 64(4)(a) of the Correctional Services Act1095 provided that a person becomes eligible for
1088 68 of 1993. 1089 340I. 1090 341A. 1091 343C. 1092 343A. 1093 2001 (2) SA 747 (C). 1094 751F. 1095 8 of 1959.
232 consideration for placement on parole after serving one half of his sentence. This period may further be reduced based on credits which he may earn.
There was furthermore an earlier policy in respect of persons who had committed serious economic offences. This policy provided that prisoners were to serve at least three quarters of their sentence prior to being eligible for parole. The court found that the granting of parole was a two phase process. Firstly the parole board conducts an investigation which includes many factors. These factors include substantially similar factors to those considered for sentencing plus the relevant regulations plus the standing orders and policies. Secondly, the parole board refers its decision to the Provincial Commissioner for Correctional Services, who, as the designated official makes a decision.1096
The court held that most policy changes have a retrospective effect. Sometimes these policy changes are to a prisoner's advantage and other times to his detriment. This however does not make the sentence more onerous as he had to serve the sentence laid down by the court. Thus, there is no basis for the prisoner’s claim to be prejudiced because he has potentially lost a privilege.1097
Regarding the legitimate expectation that they would be released on an earlier date, the court held that the only legitimate expectation which the applicants could have had was that their matter would be fairly considered and decided in accordance with the lawful policy extant at the date of the matter being considered. They had no legitimate expectation of early release.1098
The legitimate expectation argument was upheld in Mohammed v Minister of Correctional Services and Others1099 where the court confirmed the principle of legality, namely, that the legislature and the executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law. They are furthermore governed by the rule
1096 754G. 1097 756E. 1098 759E. 1099 2003 (6) 169 (SE).
233 of law which provides that the exercise of public power by the executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are arbitrary and in conflict with that requirement. Thus the exercise of public power must at least comply with this requirement in order to pass constitutional scrutiny. This is an objective enquiry and not a subjective one related to the good faith or otherwise of the decision maker.1100
The prisoner in this matter was an exemplary one and had meritorious service to his credit including frustrating escapes1101 and saving another prisoner’s life.1102 The prisoner alleged that upon entering prison he was advised that he would only serve half of his sentence and would then be eligible for consideration for parole. A guideline was issued, whilst he was in prison, in terms of which, persons convicted of aggressive or sexual offences should only be considered for parole after serving three quarters of their sentence.1103 The applicant argued that he had a legitimate expectation of being considered for parole after serving half his sentence but that in effect this new guideline retrospectively altered this. The court considered the two other judgments which also considered the Combrinck and Winckler decisions.
The court in this matter held that the retrospective policy does not impact on the sentence per se but impacts upon legitimate expectation of the time at which he can be considered for parole. The time at which he can be considered for parole is influenced primarily by his conduct and this change of guideline influences his expectation on grounds over which he has no control. Thus, this administrative action is neither fair nor reasonable. The court thus held that the Parole Board was to consider his application within one month and ignore the guideline.1104
Even though parole is not a right, but a privilege, and is a decision of the executive and not that of the courts, the courts have intervened in order to substitute its order
1100 177B – F. 1101 180F, 181E. 1102 178D – E. 1103 186B – D. 1104 188H – I.
234 for that of the CSPB in circumstances where it is clear that the CSPB is not applying its mind the matter before it.
Thus in the matter of Motsemme v Minister of Correctional Services and Others1105 the applicant was sentenced in 1996 to serve a 17 year sentence for robbery and other offences. He was an exemplary prisoner, having earned a law degree in prison and having assisted other prisoners. The Correctional Services Act1106 provided that he could be considered for parole after serving one half of his sentence. The parole board in 2002 however advised him that he would be required to have to serve three quarters of his sentence in accordance with a policy directive of April 1998 prior to being considered for parole.1107
The applicant sought to have the parole application considered on the basis of the original parole regime, that is, after serving half of his sentence. The court granted this and ordered that the parole board consider his application before the end of the year. The parole hearing was conducted but the same criteria as before were employed. The parole board employed the policy directive requiring that the prisoner serve three quarters of his sentence and parole was not granted.1108
The applicant then approached the court for a second time requesting that this second decision also be reviewed. The respondent in the matter was dilatory and failed to file papers despite several directives by the court to do so. When the papers were finally filed they were incomplete in that the records of the parole hearing to be reviewed were not filed, as the court had required.1109
Again the matter was postponed and this time the Case Management Committee report was filed at court stating that the applicant was an excellent candidate for parole and was fully rehabilitated. The matter was postponed for the Case Management Committee to make a decision. The Case Management Committee then decided that even though he was an appropriate candidate, parole would not be
1105 2006 (2) SACR 277 (W). 1106 8 of 1959. 1107 280C. 1108 280I. 1109 281F – G.
235 granted because of the seriousness of the offence.1110 They were still, in effect relying on the original guideline that the court had previously ruled they should not rely on. It then became clear that the parole board was acting inconsistently because, as the applicant demonstrated, it had released other prisoners whose offences were even more serious than his own employing the old guidelines.1111
The court noted the parole board had ignored five court orders that it properly consider the matter and also that it had failed to apply the law when considering the matter and finally that its actions were arbitrary. It then substituted its own order for that of the parole board and ordered that the applicant be released on parole.1112
17.2 MEDICAL PAROLE
Medical parole is governed by section 79 of the Correctional Services Act.1113 The current section 79 was substituted for the former section 79 in 2011.1114 The reason for the amendment was several decisions surrounding the issue of failure to release terminally ill patients and the consequent infringement of their right to dignity. It is submitted that the cases are still important insofar as they still provide guidelines in order to determine whether or not the particular refusal to grant medical parole violates the right to be treated in a manner consistent with human dignity.
Thus in Du Plooy v Minister of Correctional Services and others1115 the applicant was a prisoner convicted of armed robbery and sentenced to fifteen years in prison. He suffered from leukemia and had between one and three months to live. The court ordered that he be placed on parole. It was held that dying is an integral part of life and that the refusal to allow the prisoner to die in a manner that respected his dignity violated his fundamental constitutional right to human dignity.
1110 284C. 1111 285E. 1112 288G – H. 1113 111 of 1998. 1114 S 55 of Act No 25 of 2008 and by s 14 of Act No 5 of 2011. 1115 [2004] All SA 613.
236 Similarly in S v Mazibuko1116 the accused in this matter pleaded guilty to a number of very serious offences including hijacking, possession of an AK47 rifle and attempted murder of members of the SAPS. Whilst involved in a gun fight with the police the accused was shot and as a result became a quadraplegic and was consequently unable to perform most bodily functions himself. The court held that it would be preferable if he were released on parole as he was no longer a threat to society.
In Stanfield v Minister of Correctional Services and Others1117 the applicant was serving six year sentence for fraud but within the first third of this sentence the applicant was diagnosed as being terminally ill. At first he was being treated for a heart condition and then, during the course of this treatment, he was diagnosed with a particularly malignant lung cancer. He was given between six months and one year to live depending on the level of treatment he would receive. Furthermore during the course of treatment he would become very susceptible to infection if left in crowded or insanitary areas. His application for parole had been refused and he then brought an application to court to review that decision.
The court found that that it was unlikely that he would commit any further offence, that he was terminally ill and that there was little or no possibility of him receiving proper treatment in prison.
The court held that all people have a fundamental right human dignity and not to be treated or punished in a cruel, inhuman or degrading manner. The prisoner's right to protection of his dignity includes his right to die with dignity.1118 Further that the failure to grant parole in these circumstances was a violation of the applicant’s right to be treated with human dignity and the court ordered the release of the applicant.1119
1116 1996 4 All SA 720 (W). 1117 2003 (12) BCLR 1384 (C). 1118 Par 68. 1119 Par 129.
237 In Mazibuko v Minister of Correctional Services and Another1120 the court ordered the release of a prisoner who was dying of AIDS and whose medical condition was deteriorating daily.
The new section 79 has as its primary innovation the removal of the requirement that a prisoner can only be released if he is in the final phase of a terminal illness.1121 However, Albertus argues that on a proper interpretation of section 79(2)(c)(iii) there is still an implicit requirement that, prior to the medical parole board being empowered to release the prisoner on parole, the prisoner must be bedridden and dependent.1122 Therefore, he argues, the original evil has not yet been properly addressed.
18. LIMITATION OF RIGHTS
Section 36 of the Constitution1123 provides that the rights contained in the Bill of Rights may be limited only in terms of the law of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. When deciding upon the legitimacy of a limitation, a court shall take into account all relevant factors, including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and the least restrictive means to achieve the purpose.1124
1120 [2007] JOL 18957 (T). 1121 Albertus “Protecting inmates’ dignity and the public’s safety: A critical analysis of the new law on medical parole in South Africa” (2012) Law Democracy & Development Vol 16 185 187
238 Almost all fundamental rights are limited in some manner when a person is imprisoned. The court in Goldberg v Minister of Prisons1125 stated that some of the consequences of imprisonment were a loss of liberty, removal from society, detention in an institution where strict discipline is enforced, loss of freedom of association with the prisoner’s family and friends and the deprival of the opportunity of earning a livelihood. However, a number of other fundamental rights are limited in some way or another including the rights to privacy,1126 freedom of opinion,1127 freedom of religious observance,1128 freedom of expression, freedom of assembly, demonstration, picket and petition, freedom of movement,1129 freedom to leave the Republic, freedom to reside anywhere in the Republic,1130 freedom of trade, occupation and profession,1131 the right to control the immediate environment,1132 freedom of property,1133 the rights to adequate housing, adequate health care1134 and education1135 and the right to participate in the cultural life of choice.1136
Instead of attempting to stipulate all the rights that have been removed by imprisonment, our courts have elected to employ the Goldberg or residuum principle and the principle of legality. The prisoner retains all the basic rights of an ordinary citizen except those taken away from him by law or those necessarily inconsistent with the circumstances in which he, as a prisoner, has been placed. Even those rights of prisoners which are restricted as a necessary consequence of incarceration may only be limited if this is done by legislation, either expressly or by necessary implication.
1125 1979 (1) SA (14). 1126 Mandela v Minister of Prisons 1981 (1) SA 531 (C); Mvabaza v Commissioner of Prisons, Ciskei and Another 1988 (4) SA 348 (Ciskei); Van Biljon and Others v Minister of Correctional Services and Others 1997 (4) SA 441. 1127 Mandela v Minister of Prisons supra. 1128 St Claire v Cuyler 634 F.2d 109 (3d Cir. 1980). 1129 Goldberg and Others v Minister of Prisons and Others supra. 1130 Ibid. 1131 Thukwane v Minister of Correctional Services and Others supra. 1132 Ibid. 1133 Strydom v Minister of Correctional Services and Others 1999 (3) BCLR 342 (W). 1134 B and Others v Minister of Correctional Services and Others supra. 1135 Thukwane v Minister of Correctional Services and Others supra. 1136 Coyle Commentary on Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules (2006) 115.
239 This branch of law is however is largely concerned with limitations that exceed the permissible boundaries.
The limitation of rights operates in four distinct areas:
• Limitations that contravene the prohibition on torture or cruel, inhuman or degrading treatment or punishment.
• Limitations of fundamental rights where that limitation does not violate the prohibition on torture or cruel, inhuman and degrading treatment nor does it frustrate the purpose of punishment.
• Limitation of rights when the “type of punishment” is being considered.
• Limitation of rights when that limitation frustrates the purpose of punishment.
18.1 LIMITATIONS THAT CONTRAVENE THE PROHIBITION ON TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
Section 12(1) of the Constitution prohibits torture and treatment or punishment in a cruel, inhuman or degrading manner. There is no general table of non-derogable rights but there is such a table of non-derogable rights regarding states of emergency.1137 In this table of non-derogable rights, torture and treatment or punishment in a cruel, inhuman or degrading manner are absolutely prohibited.1138 Furthermore, section 35(2)(e) of the Constitution requires that all prisoners be confined in conditions of detention that are consistent with human dignity. This is similarly non-derogable in the context of states of emergency.1139 Furthermore, torture has been made an offense in the Prevention and Combating of Torture of Persons Act.1140
1137 S 27(5). 1138 Ss 12(1)(d) and (e). 1139 This debate was canvassed in a different context under s 4 of this chapter. 1140 13 OF 2013
240 This appears to create a situation in regard to punishment similar to that which was dealt with in S v Makwanyane1141 and S v Williams.1142 That is, that even if the conditions of detention are such that they violate section 35(2)(e) or section 12(1)(d) and (e) they may still be justifiable in terms of the section 36. In other words, on a prima facie reading of the bill of rights, torture or cruel, inhuman or degrading treatment or punishment may be justifiable.
This is what was found in both S v Makwanyane1143 and in S v Williams.1144 In both of those cases the court first found the “type” of punishment, the death penalty for non-treasonable offences in the former and the corporal punishment of minors in the latter, to violate the prohibition on cruel, inhuman or degrading treatment or punishment, and then went on to decide whether this was justifiable, employing the purposes of punishment as a criterion.
The argument that there can be justification for torture or cruel, inhuman or degrading treatment or punishment is an extremely strange one since in terms of South Africa’s international obligations these prohibitions are absolute and non-derogable. The ICCPR1145 provides in Article 7 that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. There is only one provision that allows for derogation in the convention and that is Article 4(1). That Article allows for derogation of certain of the obligations contained in the ICCPR in the case of states of emergency. However, Article 4(2) provides that Article 7 is non-derogable even in cases of emergency.
Makwanyane1146 and Williams1147 were decided under the interim constitution that specifically enjoined an enquiry into justifiability of section 11.1148 Section 11 contained the prohibition against torture and cruel, inhuman or degrading treatment
1141 1995 (3) SA 391. 1142 1995 (3) SA 632. 1143 Par 26. 1144 Par 53. 1145 GA Res 2200A (XXI) of 16 December 1966, 21 UN GOAR Supp (No 16) 52, UN Doc A/6316 (1966). 1146 1995 (3) SA 391. 1147 1995 (3) SA 632. 1148 See s 33 of Constitution of the Republic of South Africa Act 200 of 1993.
241 or punishment but the justification test was contained in section 33(1)(a). This latter section required that, in addition to the ordinary justification test contained in that section, the limitation should also not negate the essential content of the right.1149
However, the position under the interim constitution is distinguishable from the position under the current constitution in that at the time that the interim constitution was drafted, South Africa had not yet signed the ICCPR.1150 Furthermore, S v Makwanyane1151 and S v Willams1152 are also distinguishable since they were both decided in 1995 prior to the ICCPR1153 being ratified.1154 Accordingly, it is submitted that the legal position has changed since those decisions were made.
It is submitted that the prohibition against torture and cruel, inhuman and degrading treatment or punishment is absolute and a limitation cannot be justified. Therefore, once a decision has been made by the relevant court that a limitation of a prisoner’s rights are of such a nature that they constitute torture or cruel, inhuman or degrading treatment or punishment, then that limitation must cease. There can be no justification for it.
This argument was implicitly accepted in Namunjepo and Others v Commanding Officer, Windhoek Prison and Another1155 where the court found a violation of the constitutional guarantee prohibiting torture, cruel, inhuman and degrading treatment or punishment. The court did not continue to consider whether or not this was justifiable as had occurred in S v Makwanyane1156 and S v Willams.1157 The court expressly cited the ICCPR as an important consideration in its judgment.
1149 S 33(1)(b)(aa). 1150 South Africa signed the ICCPR on 3 Oct 1994 and ratified on 10 December 1998. 1151 1995 (3) SA 391. 1152 1995 (3) SA 632. 1153 GA Res 2200A (XXI) of 16 December 1966, 21 UN GOAR Supp (No 16) 52, UN Doc A/6316 (1966). 1154 10 December 1998. 1155 2000 (6) BCLR 671 (NmS). 1156 1995 (3) SA 391. 1157 1995 (3) SA 632.
242 In S v Willams1158 the court did raise the issue of whether a violation of this nature could ever be justified. The court adopted the position that it need not decide the issue finally but obiter expressed the view that it was not justifiable.1159
18.2 LIMITATIONS THAT DO NOT CONTRAVENE THE PROHIBITION ON TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT NOR FRUSTRATE THE PURPOSES OF PUNISHMENT
In the normal course of events where a prisoner complains of a particular violation, then this can usually be resolved with the simple application of the limitation test contained in section 36 of the Constitution.
This was illustrated in the matter of Thukwane v Minister of Correctional Services and Others1160 where the complaint by the prisoner was that he was not being granted access to certain study facilities. The issue was the balancing of the interests of the prisoner’s right to study versus the security requirements of the prison. The court, in effect, found that the right to education (studies) should be subordinated to the security requirements of the prison.
This matter concerned a prisoner who was incarcerated in Pretoria Local Prison in consequence of a conviction of murder and he was still to stand trial for armed robbery. The applicant had launched a class action (representing those in his wing of the prison) in order that they might be permitted access to study cells, use of the internet for study purposes and attending classes outside the prison grounds.
The court began by confirming the residuum principle and the principle of legality.
The court found that the fundamental rights which were the subject of the complaint included freedom and security of the person, namely the right to freedom from cruel, inhuman and degrading punishment, freedom of expression (including academic freedom), freedom of movement and residence, freedom of trade and occupation and the right to freely choose these and the right to further education.
1158 1995 (3) SA 632. 1159 Paras 55, 56, 21. 1160 2003 (1) SA 51 (T).
243
It was not in dispute that in order for the applicant to complete his course of study, it was necessary for him to have access to the internet to download assignments, use e-mail to correspond with and send assignments to his lecturer and to download study material.
The court rejected the application holding that society expects prison conditions to be consistent with a place of punishment and emphasized the very limited conditions in which prisoners are expected by society to live. This line of reasoning violates a fundamental rule of prison law, namely, that imprisonment is a punishment in and of itself and therefore conditions of imprisonment shall not aggravate the suffering inherent in imprisonment.1161
The case does however, illustrate what may be referred to as the ordinary limitation of rights case. This would be a limitation of a fundamental right where the limitation violates a fundamental right or rights but it does not constitute a violation of the prohibition against torture or cruel, inhuman or degrading treatment or punishment nor is it symptomatic of systemic problems. This case may also fall into the category of cases dealing with rehabilitation but for the purposes of this illustration it need not be considered under that heading.
This decision can be criticized on the basis that internet filters are commonplace in institutions such as schools that can filter out undesirable material and there is no easier means of allowing large numbers of remote students access to study facilities than the internet. The internet also allows prisoners to maintain contact with the community in a manner that eases the burden on officials. There are numerous ways of allowing e-learning including limited access networks. Furthermore, education is generally viewed as a fundamental component of rehabilitation and re- socialisation and e-learning is a cost effective component of this means of prison
1161 UNSMR 57; EPR Rules 6 and 102; The Kampala Declaration On Prison Conditions In Africa Art 4.
244 education. This has been recognized in various countries including USA,1162 Australia1163 and Europe.1164
Other cases dealing with these types of violation are Hassim and Another v Officer Commanding, Prison Command, Robben Island and another; Venkatrathnam and Another v Officer Commanding, Prison Command, Robben Island and another1165 where inter alia reading material and study material were withdrawn as privileges.
In August and Another v Electoral Commission and others1166 the court was called upon to weigh the right to vote to be against the logistical, financial and administrative difficulties that would be encountered if prisoners were allowed to vote. The argument put forward by the Independent Electoral Commission was that the prisoner’s predicament was of their own making.1167 The court weighed these considerations against the importance of the right to vote in South Africa. It employed the test set forth in section 36, and found that the aforementioned constraints were not sufficient to outweigh the right to vote.
In Minister of Home Affairs v National Institute for Crime Prevention and the Re- integration of Offenders (NICRO) and others1168 the court was called upon to adjudicate upon a legislative deprivation of the prisoner’s right to vote. The court considered section 36 of the Constitution and weighed up the importance of the right to vote as against the costs of accommodating the prisoners and the policy of not
1162 Federal Bureau of Prisons “Trulinks FAQ” (17-04-2013) Federal Bureau of Prisons:An agency of the U.S. Department of Justice
245 permitting prisoners to vote as a symbol of denunciation of the criminal.1169 The court rejected these two considerations, holding that they were not sufficiently important when weighed against the right to vote. The court also held that the limitation was applied too widely. That is, the limitation, if implemented, should be narrowly implemented, and identify particular classes of criminal for denunciation.1170 The court therefore rejected the limitation.
Similarly, in Strydom v Minister of Correctional Services and others1171 the court was required to balance the requirements of safety, security and good order of the prison against the right of the prisoner not to be deprived of his electrical goods. The court found that his conditions of detention were so onerous that he was entitled to have his electrical goods returned to him but ordered that they need only be returned after new wiring had been installed in the prison.
In the USA, these types of “normal” limitation cases are dealt with on the basis set out in Turner v Safley.1172 These guidelines may be of use in South Africa. The court held that there are four important considerations:
• What is the relationship between the restriction and the legitimate interest of the institution?
• Are there alternative ways that exist for the prisoner to still exercise his right if the limitation is imposed?
• If the limitation is not applied to the prisoner, what is the impact on other prisoners, staff and prison resources?
• Do ready alternatives exist that would allow the prisoner to exercise his right and still satisfy the legitimate interests of the prison.
1169 Par 66. 1170 Par 67. 1171 1999 (3) BCLR 342 (W). 1172 482 U.S. 78 (1987).
246 It is submitted that it would be desirable in South Africa if a similar jurisprudential framework could be developed since this is consistent with the factors specified in section 36 of the Constitution but this test brings important considerations to the fore that are specific to prisons.
18.3 “TYPE OF PUNISHMENT” CASES
There are two “type of punishment” cases in our law and these are in S v Makwanyane1173 and S v Williams and Others.1174 The former involved the constitutionality of the imposition of the death sentence for non-treasonable offences and the latter involved the constitutionality of corporal punishment of juveniles.
The importance of these cases for this study is the tools that they provide for determining whether or not a particular limitation of a fundamental right is justifiable. The matters were decided under interim Constitution1175 which contained a substantially similar general limitation1176 provision to the limitation clause1177 under the current Constitution, save that it imposed the additional requirement that the limitation not negate the essential content of the right, in certain instances. This latter requirement does not appear in the current constitution.
In both matters the court adopted the same two stage approach when assessing a limitation of rights. Firstly, a broad rather than a narrow interpretation is given to the fundamental rights enshrined in the Bill of Rights. Secondly, limitations of any of these rights have to be justified by the application of the justification clause.1178
In order to do decide whether the fundamental rights of offenders have been unjustifiably limited, the courts engaged upon a consideration of international and comparative law,1179 a consideration of values underlying the constitution1180 and
1173 1995 (6) BCLR 665 (CC). 1174 1995 (3) SA 632 (CC). 1175 Act 200 of 1993. 1176 S 33. 1177 S 36. 1178 S v Makwanyane supra par 100; S v Williams supra par 54. 1179 S v Makwanyane supra par 33 onwards; S v Williams supra par 23.
247 finally whether the conduct of the state, of which the offender was complaining, was arbitrary.1181 These factors led the court to a value judgment in order to determine whether a fundamental right had been unjustifiably limited. In these two matters the fundamental right being adjudicated upon was the right not to be punished in a cruel, inhuman or degrading manner.1182 Public opinion is not a factor that the courts will take into account.1183 The court found that dehumanization and objectification of the individual is an important consideration when deciding whether or not the individual’s dignity had been violated.1184
Arbitrariness was caused by the death penalty being imposed on offenders in an inconsistent manner. The court held that poverty, race, the differing views of judges and chance play roles in the outcome of capital cases and, in the final decision, as to who should live and who should die. These factors led to inconsistency and therefore arbitrariness.1185
A similar approach to arbitrariness was adopted by the court in the Williams1186 matter. The court there found that the degree of pain inflicted is quite arbitrary, depending as it does on the person who is delegated to do the whipping. The court merely directs the number of strokes to be imposed.1187
Having concluded in those matters that the punishment was cruel, inhuman or degrading, the court1188 then considered the justification of the limitation
In order to decide whether the limitation was reasonable and justifiable, the approach adopted was based broadly upon the test articulated in the matter of R v Oakes.1189
1180 S v Makwanyane supra par 131; S v Williams supra par 37. 1181 S v Makwanyane supra par 43 onwards; S v Williams supra par 45. 1182 S v Makwanyane supra par 95; S v Williams supra par 53. 1183 S v Makwanyane supra par 88. 1184 S v Makwanyane supra par 26; S v Williams supra par 28. 1185 S v Makwanyane supra par 51. 1186 S v Williams supra. 1187 S v Williams supra paras 45 and 89. 1188 S v Makwanyane supra par 105. 1189 (1986) 19 CRR 308.
248 This test is purposive and was confirmed in the Williams1190 matter. The test can be summarized as follows:
• A limitation of a fundamental right had to be directed to the achievement of an objective of sufficient importance to warrant the limitation of the right in question.
• There had also to be proportionality between the limitation and such an objective.
The components of proportionality are as follows:
• The measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective.
• Second, the means, even if rationally connected to the objective in this first sense, should impair, as little as possible, the right or freedom in question.
• There must be a proportionality between the effects of the measures which are responsible for limiting the right or freedom, and the objective which has been identified as of sufficient importance.
Being a purposive approach, the court was compelled to consider the purpose that the limitation was designed to achieve. The limitation, in both cases, was a form of punishment and therefore the court considered the purposes of punishment. In Makwanyane1191 these were deterrence,1192 prevention,1193 rehabilitation1194 and retribution.1195 In Williams the purposes considered were deterrence,1196
1190 S v Williams supra par 51. 1191 S v Makwanyane supra. 1192 S v Makwanyane supra par 116. 1193 S v Makwanyane supra par 128. 1194 S v Makwanyane supra par 263. 1195 S v Makwanyane supra par 129. 1196 S v Williams supra par 65.
249 retribution,1197 rehabilitation1198 and deterrence.1199 In other words, the normal grounds considered by our courts for the purposes of punishment.
The court then assessed the relative importance of the different elements of punishment in coming to a final decision. In both matters the court held that retribution was of lesser importance, holding that the Constitution created an opportunity for South Africans to join the mainstream of the world community. The world community is progressively moving away from punishments that place undue emphasis on retribution and vengeance towards an emphasis on correction, prevention and the recognition of human rights.1200 The court further held that the individual’s rights should not be unduly subordinated to the goal of deterrence.1201
In Makwanyane1202 the court held that one of the purposive theories of punishment is the reformative theory which considers punishment to be a means to an end, and not an end in itself. The purpose being that the offender may become a normal law- abiding and useful member of the community once he re-enters society. This theory, the court held, was associated with a fundamental value of the Constitution, namely, the value of Ubuntu.1203
Although the court did not prioritise the purposes of punishment in a definite hierarchy of importance, it is clear from what was noted above that retribution, although important, was less important than the other three purposes. Furthermore, rehabilitation was closely aligned with fundamental values in the Constitution.
What purposes parliament chooses to pursue are matters of policy and in this regard the courts will be reluctant to interfere.1204
1197 S v Williams supra par 86. 1198 S v Williams supra par 66. 1199 S v Williams supra par 80. 1200 S v Makwanyane supra par 341; S v Williams supra par 50. 1201 S v Williams supra par 85. 1202 S v Makwanyane supra. 1203 S v Makwanyane supra paras 242 and 243. 1204 S v Makwanyane supra par 104.
250 In S v Makwanyane1205 the court held that the question is not whether the death penalty is a cruel, inhuman or degrading punishment in the ordinary meaning of these words but whether it is a cruel, inhuman or degrading punishment within the meaning of the Constitution. The persons who rely on provisions of the Constitution carry the initial onus of establishing this proposition.1206 However, once the court has found that a limitation of rights has occurred, then the onus is on the state to establish the justification.1207
Therefore, the task of determining whether the provisions of an Act or other government action are invalid, because they are inconsistent with a fundamental right, is a two stage process. Firstly, there must be a determination of whether there has been an infringement and secondly whether that infringement is justified.1208
The nature of the onus that rests on the state to justify the limitation is not an ordinary one and to the extent that the justification rests on factual and/or policy considerations, the government must put such material before the court. The discharge of this onus includes the submission of legal argument, factual material and policy considerations. The failure by the government to submit such argument, policy considerations and factual substantiation may result in the court finding that the challenged provisions are invalid.1209
Although the court can rely on common sense and judicial knowledge, there is still a duty upon the government, where the justification depends on factual material, to establish those facts and where the justification depends not upon facts but on policies, then it is incumbent upon the government to justify the policy and to place information before the court which fully explains the policy and the reasons for its existence.1210
1205 S v Makwanyane supra. 1206 S v Makwanyane supra par 26. 1207 Ferreira v Levin NO 1996 1 SA 984 (CC). 1208 Currie and De Waal The Bill of Rights Handbook 27. 1209 Moise v Greater Germiston Transitional Local Council 2001 (4) SA 491 (CC). 1210 Minister of Home Affairs v National Institute for Crime Prevention and the Re-integration of Offenders (NICRO) and Others supra.
251 The court in both matters found that the provisions complained of constituted cruel, inhuman or degrading punishment and then went on to find that the state had not discharged the onus of justification and therefore the limitation was unjustifiable.1211
Two critical aspects for the courts in deciding whether the limitation was justifiable were firstly, whether the state could show that there are no other punishments which are adequate to achieve the purposes for which it is imposed1212 and secondly, whether it frustrates the very purpose it is supposed to achieve.1213
In Williams1214 the court held that corporal punishment serves no useful deterrent function; on the contrary, its effect is likely to be coarsening and degrading rather than rehabilitative.1215 In Makwanyane1216 the court held that the death penalty precludes the possibility of rehabilitation of the convicted person and that this conflicts with the fundamental constitutional value of ubuntu and runs counter to it.1217
It will be submitted that the importance for prison law as a “type of punishment” is three fold.
Firstly, where there are limitations of prisoners’ fundamental rights, they must not frustrate the purposes of punishment. If they do so frustrate the purposes of punishment, they are not justifiable and should be declared unconstitutional.
Secondly, imprisonment as a “type of punishment” may be declared unconstitutional. There are several qualifications to this submission. Firstly, this will only occur where conditions of detention have deteriorated so far that the state has demonstrated a clear inability to provide conditions of detention, generally, that do not violate the prohibition on cruel, inhuman or degrading treatment or punishment. Secondly,
1211 S v Makwanyane supra par 151; S v Williams supra par 96. 1212 S v Makwanyane supra par 106; S v Williams supra par 91. 1213 S v Makwanyane supra paras 241 and 260; S v Williams supra par 81. 1214 S v Williams supra. 1215 S v Williams supra par 81. 1216 S v Makwanyane supra. 1217 S v Makwanyane supra paras 241 and 260.
252 these conditions will result where there are systemic problems such as high levels of overcrowding, failure of health services, inability to properly examine and treat prisoners with infectious diseases, a failure to segregate those infected prisoners and other conditions similar to those identified in the matter of Brown v Plata.1218 The condemnation of the court will not be permanent but will demand a remedy that changes the conditions of detention such as the imposition of a population cap.
Thirdly, since research has shown1219 that the prison does generally not achieve the purposes of rehabilitation and furthermore, since there is an awareness of the detrimental effects of imprisonment, this has led to abolitionist and reductionist approaches to imprisonment.1220 Reductionists argue for a reduction of the overall prison population by proposing varying strategies that limit the number of people who go to prison and the length of the sentence that is served.1221
18.4 LIMITATION OF RIGHTS WHEN THE LIMITATION FRUSTRATES THE PURPOSE OF PUNISHMENT
Where there are limitations of prisoners’ fundamental rights, they must not frustrate the purposes of punishment. If they do so, they are not justifiable and should be declared unconstitutional.
Therefore, when a particular limitation of a prisoner’s rights limits the prisoner’s ability to obtain rehabilitative material, then there are two approaches that may be adopted. The first is to argue that whether or not there is a right to rehabilitative material is irrelevant because the limitation frustrates the purpose of punishment and therefore the justification for the limitation of the other rights, that is imprisonment itself, is removed. In order to remedy that wrong the limitation must be removed.
1218 (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2-03-2013). 1219 See Ch 5 below. 1220 Van Zyl Smit and Snacken Principles of European Prison Law And Policy Penology and Human Rights 20. 1221 Ibid.
253
The other approach is to argue that rehabilitation is a right as provided for in the Correctional Services Act1222 and also a fundamental right1223 since it is fundamentally linked to the principle of ubuntu1224 and therefore limitations on that right should not easily be permitted. Thus in Ehrlich v Minister of Correctional Services and others1225 the court compelled proper provision of meals, library services, sentencing plans and development plans.
19. CONCLUSION
This research represents a comprehensive review of South African prison law. The purpose of the research was to create a set of principles which apply to prisoner rights in South Africa.
The beneficent state principle, the safe passage principle and the ward principle have been proposed. These are labels applied to existing duties in order to highlight their importance.
It was proposed that it is not possible to create a numerus clausus of prisoner rights and it was for this reason that the residuum principle provides that a prisoner retains all the basic rights and liberties of an ordinary citizen except those taken away from him by law, expressly or by implication, or those necessarily inconsistent with the circumstances in which he, as a prisoner, is placed.
It was submitted that the obligation not to torture prisoners nor to treat or punish them in a cruel, inhuman or degrading manner had several important implications. It was argued that no such treatment or punishment is justifiable on any grounds. Thus, if a court were to find conditions of detention existed that violated that prohibition, it need not enquire any further as to whether it was justifiable in the manner contemplated in section 36 of the Constitution. One implication of this argument is that that no
1222 111 of 1998, s 16. 1223 Thukwane v Minister of Correctional Services and Others supra. 1224 S v Makwanyane supra. 1225 2009 (2) SA 373 (E).
254 violation of prisoner rights of such a nature could be justified by the scarce resources of the state.
However not all limitations violate the aforesaid absolute standard. If the limitations of prisoner rights were of such a lesser nature, then the justification test in section 36 of the Constitution was to be considered.
It was further argued that the test in section 36 of the Constitution may be summarized as applying the principles of legitimacy and proportionality. The implication of this principle is that imprisonment is a punishment in and of itself and that any restriction on the rights of a prisoner must be the minimum necessary.
It was argued that the subordination of offender rights by way of imprisonment was in order to punish the offender. This purpose has four components, namely retribution, deterrence, rehabilitation and prevention. The importance of rehabilitation and specific deterrence are highlighted elsewhere in this research.1226 However, the importance of re-intergration of the offender into the community and ubuntu were also highlighted in this regard.
These provide important criteria in assessing whether any limitation may be justified. Should any limitation purposively frustrate the purpose of rehabilitation or deterrence it will not be justifiable.
Furthermore, where neither of the above two criteria are involved, then a general test, based on the test employed in the United States of America was proposed.
It was further argued that prisoners have a right to privacy and that in line with the German authorities, prisoner records should be protected in order to facilitate their re-integration into the community. This may also avoid some of the dangers of labeling and stigmatization.1227
1226 Vida infra. 1227 Vida infra.
255 Various remedies have been proposed for the unjustified limitation of prisoner rights. It was proposed that there be a graded response to the unjustified limitations of the fundamental rights of prisoners. The grading would be in the context of ongoing violations. Thus, initially an interdict may suffice. However, if this fails then greater intervention may be required such as a structured interdict. If it is clear that the abuses are not being remedied then even greater court intervention may be required. This would be a special master of some type.
The first remedy is that of a damages claim. Damages may be a damages claim framed in delict which requires causation to be proved. The difficulties in proving causation were also debated. It was argued that there may be a claim for constitutional damages which could be framed in terms of section 38 and section 172 of the Constitution. This would do away with the need to prove causation and would provide a remedy for a mere violation of a fundamental right. The possibility of this remedy being employed in the context of prison law was discussed in the context of loss of a parent in the matter of M and Another v Minister of Police of the Government of the Republic of South.1228 It was also argued that this should be graded in some manner that serious abuses deserve greater compensation and that minor violations justify only small awards.
It was submitted that damages awards were appropriate where the offending state action had already passed.
The possibility of interdicts was also debated. It was submitted that these were appropriate where the act or omission about which the prisoner complained was ongoing. The type of order that could be granted was not limited to a particular form. Some of the examples cited in this research include orders directing the prison authorities to provide medication, orders directing parliament provide funds to prisons, orders directing the relevant authorities to raise taxation for the purpose of funding prisons, orders that screens be erected in cells to separate eating areas from toilet areas.
1228 2013 (5) SA 622.
256 It was further argued that far more individual type orders could potentially be sculpted. This argument was premised upon the order granted in President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd.1229
In the United States of America the courts have the power to appoint special masters. These are individuals appointed to supervise the running of a particular prison or prison system. The master will typically report to the court but also will ensure that court orders that order the amelioration of prison conditions be carried out. In Europe the ECtHR1230 court required the state to co-operate with the Council of Ministers of the Council of Europe, within six months from the date on which the judgment became final, on a binding time frame for resolving the problems caused by overcrowding. This type of independent oversight with an advisory function would also potentially form part of the role of a special master.
In South Africa, structured interdicts have been issued requiring that prison authorities that have been ordered to carry out certain tasks and thereafter file affidavits confirm that they have complied with the order as well as the manner of their compliance.
It has been argued that in South Africa the court may appoint individuals, such as attorneys, as agents of the court in order to ensure that orders that were made are implemented and to further report to the court on an ongoing basis regarding implementation of these orders.
It was further argued that these type of officers could be tasked with a wide variety of functions depending on the particular violation of fundamental rights complained of. This could be from reducing overcrowding in a particular institution to overseeing health care facilities, or care of juveniles and so forth. The officers need also not be attorneys. For example, should the violation concern health issues, it may be necessary to appoint a doctor to oversee the operation of a health system in a particular prison. Similarly if corruption is the complaint before the court, then a
1229 2005 (5) SA 3 (CC). 1230 Ananyev and Others v Russia 2011 (application nos. 42525/07 and 60800/08) http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx#{"display":["1"],"dmdocnumber": ["898156"]} (accessed 19-06-2013).
257 forensic specialist may be the appropriate individual to appoint. It is also possible that a team of specialists may be necessary for a particular task.
The possibility of population caps was also raised as was the possibility that a court order that a particular prison refuse to take any further prisoners.
Finally, the possibility of limited resources of the state as a defence was also discussed. Firstly, it was concluded that the onus in this regard would be upon the state to prove that its resources were limited. Secondly, it was concluded that the power to limit rights was itself limited to the furtherance of the legitimate purposes of punishment. The provisions in the empowering legislation, that is the Correctional Services Act,1231 expressly circumscribe the power to incarcerate by stating that all prisoners must be detained in safe custody whilst ensuring their human dignity. Therefore, the power, or right to punish by way of incarceration, is one which is intrinsically tied to the obligation to provide a certain minimum level of service to the prisoner. In other words, any effort to justify a violation of “human dignity” rights whilst incarcerating a prisoner on the basis of the limited resources at the disposal of the state must fail because the power to incarcerate, is itself limited, to the provision of conditions consistent with human dignity.
Thirdly, there are instances where the limitation of prisoner fundamental rights is caused by insufficient resources of the state but the limitation does not violate the human dignity provisions of the Constitution and further, that the effect of the limitation is such that the limitation does frustrate the purposes of punishment. In terms of section 36, any limitation of fundamental rights must be consistent with human dignity and justifiable in an open and democratic society based on human dignity, equality and must be rationally related to the purpose of the limitation.
Therefore, it is submitted that the limitation of the prisoner’s rights on the basis of limited resources will not be constitutionally defensible in these circumstances. The reason is that the purpose of punishment is frustrated.
1231 S 2 Act 111 of 1998.
258 It was argued however that where the limitation caused by an absence of resources does not frustrate the purpose of punishment nor does it violate the protections contained in section 12 of the constitution, it is possible that the court will exercise its discretion and not assist a prisoner. This, it was submitted, could be in both the context of delictual claims and interdicts.
A further caveat is necessary to this defence. It is possible that a court could order the government to raise funds to make money available to prison authorities so that they could properly discharge their functions.
Finally, the possibility of the courts declaring imprisonment as a “type of punishment” as unconstitutional was raised. It was argued that this was notionally possible for the courts to adopt an abolitionist approach although it was highly unlikely. The conditions under which it could happen were debated. However, the possibility of reductionism as a logical progression from the failure of prison to achieve its objectives was noted. The role of arbitrariness of the nature of imprisonment was also debated since the experience of each prisoner is unique and dependent upon a wide number of variables.1232
It will now be necessary to more fully study the purposes of punishment. Punishment is the standard against which to measure the justifiability of limitations of prisoner rights in terms of section 36.
1232 Vida infra.
259 CHAPTER 5 THEORIES OF PUNISHMENT
1. Introduction ...... 260 2. Terminology ...... 261 2.1 Rehabilitation ...... 262 2.2 Deterrence ...... 264 2.3 Prevention ...... 266 2.4 Retribution ...... 267 3. The theories ...... 268 3.1 Prevention ...... 268 3.1.1 Jurists ...... 268 3.1.2 Common law ...... 269 3.1.3 Assessment of the theory ...... 272 3.2 Retribution ...... 273 3.2.1 Jurists ...... 273 3.2.2 The common law ...... 277 3.2.3 The Correctional Services Act...... 279 3.3 General deterrence ...... 281 3.3.1 Jurists ...... 281 3.3.2 The common law ...... 283 3.3.3 The economic theorist approach ...... 286 3.3.3.1 Background ...... 286 3.3.3.2 Theoretical construction ...... 287 3.3.3.3 Empirical testing of the model...... 290 3.3.3.3.1 Empirical testing of hypothesis one: an inverse relationship between the objective properties of punishment and the crime rate ...... 290 3.3.3.3.2 Empirical testing of hypothesis two: a positive relationship between the objective and the perceptual properties of punishment ...... 295 3.3.3.3.3 Empirical testing of hypothesis three: an inverse relationship between the perceptual properties of punishment and measures of criminal offending must be demonstrated ...... 297 3.3.4 The Correctional Services Act...... 299 3.4 Rehabilitation ...... 299 3.4.1 Jurists ...... 299 3.4.2 The common law ...... 302 3.4.3 The medical model and the assessment thereof ...... 306 3.4.3.1 Brief history of the medical model ...... 307 3.4.3.2 Current theoretical model and empirical evaluation thereof ...... 309 3.4.3.3 Specific deterrence, rehabilitation and recidivism ...... 316 3.4.4 The Correctional Services Act...... 321 4. Conclusion ...... 322
1. INTRODUCTION
Section 36 of the Constitution provides that the fundamental rights contained in the Bill of Rights may be limited, provided that the limitation is justifiable in terms of the
260 criteria specified in this section. The test espoused in this section is purposive and in the context of punishment the purposes which the limitation must achieve in order to be justifiable are the four common law purposes of punishment. These have been held by our courts to be retribution, prevention, deterrence and rehabilitation.1233
This has a three-fold impact on prisoner rights. Firstly, where a particular limitation frustrates the purposes of punishment it should not stand constitutional scrutiny.1234 Secondly, if imprisonment as a “type of punishment” is challenged on the basis of conditions of detention then the four purposes of punishment are the yardstick by which its constitutionality will be measured.1235 Thirdly, if it can be demonstrated that imprisonment, in general does not achieve its purposes then it follows, logically, that our courts are to adopt a reductionist policy towards imprisonment.1236
In order to analyse these four purposes, it is necessary to consider - and clarify - the terminology employed by the different groups of theorists.
Each purpose will then be considered from different perspectives: firstly, the approach adopted by jurists; secondly the approach adopted by the South African courts; thirdly the views of other theorists relating to those purposes and the studies conducted in that field and finally, the approach adopted by the Correctional Services Act.1237
2. TERMINOLOGY
As will be observed below there are different disciplines, or groups of theorists, that have contributed to the study of punishment. These include, but are not limited to, economists, social theorists and jurists. Unfortunately each of these disciplines tends to use different terminology when describing the same or similar phenomena. It is
1233 S v Makwanyane supra; S v Williams supra. 1234 S v Williams supra. 1235 S v Makwanyane supra; S v Williams supra. 1236 “Commentary on Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules" (2006) 40; Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 88 onwards. 1237 111 of 1998.
261 necessary to discuss the terminology of the different disciplines in order to clarify what is being referred to.
Our courts generally state that the purposes of punishment are retribution, rehabilitation, deterrence and prevention. These are also the general distinctions generally drawn by jurists.1238 However, this terminology, other than the term rehabilitation, does not appear in the Correctional Services Act.1239
2.1 REHABILITATION
The Correctional Services Act1240 primarily embraces two concepts that have relevance in this context, namely, “correction” which means the provision of services and programmes aimed at correcting the offending behaviour of sentenced offenders in order to rehabilitate them - and “development” which means the provision of services and programmes aimed at developing and enhancing competencies and skills that will enable the sentenced offender to re-integrate into the community. The concepts of rehabilitation (correction) and re-integration (development) are central to the Correctional Services Act1241 which states that the deprivation of liberty serves the purposes of punishment and that the implementation of a sentence of incarceration has the objective of enabling the sentenced offender to lead a socially responsible and crime-free life in the future. The concept of re-integration may be regarded as part of the concept of rehabilitation when the court describes rehabilitation although it does not expressly mention this concept. The idea of re- integration into the community may be regarded as part of Ubuntu,1242 as can the concept of rehabilitation.1243 Therefore, when the court uses the term rehabilitation it is using it in its widest possible sense, including correction, reintegration,
1238 Dubber “Theories of Crime and Punishment in German Criminal Law” (2005) Vol 53 No 3 The American Journal of Comparative Law 679 696; Cohen “Introduction to the Theory, Justifications and Modern Manifestations of Criminal Punishment” (1981) 27 McGill LJ 73. 1239 111 of 1998. 1240 111 of 1998, definitions. 1241 111 of 1998, s 36. 1242 Afri-Forum and Another v Malema and Others supra. 1243 S v Makwanyane supra paras 241 and 260.
262 development and ubuntu, that is, to enable the sentenced offender to lead a socially responsible and crime-free life in the future.1244
Jurists generally divide the theories of punishment into two broad categories, namely, absolute and relative theories of punishment. The relative theories of punishment justify punishment by virtue of their utilitarian function.1245 The justification for punishment is found in the future and not, as in the case of retribution, in the past. The purpose of punishment in terms of these theories is the prevention of crime in society in the future. The underlying idea is that offenders should become, and citizens generally should remain, law abiding. There are two broad sets of theories that comprise the relative theory of punishment. The first relates to individual prevention, while the second relates to general prevention.1246 The relative theories substantially accord with the purposes of the Correctional Services Act.1247
Rabie divides the purposive theories into two schools, namely general prevention and individual prevention. Individual prevention is concerned with preventing an individual from committing a further criminal offence.1248 He places four theories under the heading of individual prevention: incapacitation, deterrence, rehabilitation and social defence.1249
Economic theorists1250 who discuss the issue of whether an individual has stopped offending refer to specific deterrence. However they will generally not discuss psychological or medical models. These economic theorists rely upon the rational choice model of punishment.1251 On the other hand those researchers who rely on
1244 S v Makwanyane supra par 242. 1245 Rabie and Strauss Punishment and Introduction to Principles 4thed (1985) 23; Andenaes The General Preventive Effects of Punishment (1966) Vol 114 No 7 University of Pennsylvania Law Review 949. 1246 Rabie Theories of Punishment (1977) 4. 1247 111 of 1998, s 2 and s 36. 1248 Rabie Theories of Punishment 4. 1249 Ibid. 1250 Vida infra. 1251 Paternoster "How Much Do We Really Know About Criminal Deterrence?" (2010) Vol 100 No 3 The Journal Of Criminal Law & Criminology 765.
263 the medical model which is primarily concerned with psychological changes in the individual refer to the concept of rehabilitation.1252
Therefore for the purposes of this discussion, unless otherwise specified or if it is apparent from the context, the concept of rehabilitation will be viewed in terms of specific deterrence, the medical models, ubuntu, development, re-integration and corrections.1253
2.2 DETERRENCE
Rabie distinguishes between general and individual prevention. He argues that individual deterrence is one of the sub-goals of individual prevention. Similarly, he argues that general deterrence is a sub-goal of general prevention. He argues that the theories of general prevention are justified by keeping people law abiding. People are restrained from committing crimes by the threat of punishment rather than by the imposition of punishment, as in the case of specific deterrence.1254
Jurists divide general prevention into various theories, namely general deterrence;1255 the socialising1256 and the habituative functions of the criminal sanction;1257 the morale sustaining function of punishment1258 and the socio- pedagogical or teaching function.1259 They accordingly regard general deterrence as a manifestation of general prevention.
The imposition of punishment upon one person can serve as a threat in respect of another. In other words, punishment of an offender acts as a deterrent to non- offenders who see the imposition of punishment on others as a threat of potential
1252 Riveland "Prison Management Trends, 1975-2025" (1999) 26 Crime and Justice 163 165. 1253 Andenaes “The General Preventive Effects of Punishment” 949. 1254 Rabie Theories of Punishment 4. 1255 Rabie Theories of Punishment 12. 1256 Rabie Theories of Punishment 3. 1257 Rabie Theories of Punishment 17. 1258 Andenaes “The General Preventive Effects of Punishment” 949 950. 1259 Ibid.
264 punishment to themselves. The threat of general deterrence would be idle if not enforced upon actual offenders.1260
The Correctional Services Act does not mention deterrence at all but rather adheres to a medical type of model of rehabilitation. The Act governs the prisons which operate within the larger crime prevention system, that is, police, prosecution, courts, community-based punishment mechanisms, parole systems, prisons etc. Thus, when seen from the perspective of the crime prevention system one of the reasons for punishment is general deterrence. However, when seen from the perspective of the prison administration itself, general deterrence is not something with which they are concerned. From their perspective they are only concerned with their own mandate which is to contribute to maintaining and protecting a just, peaceful and safe society by enforcing the sentences of the courts, detaining all prisoners in safe custody whilst ensuring their human dignity and promoting the social responsibility and human development of all sentenced offenders.1261
Economist theorists employ the rational choice model for both general and specific deterrence.1262 And when the courts discuss deterrence they are referring to both specific and general deterrence.1263 These discussions of deterrence are generally in the context of sentencing and not prisoner rights. However, when the courts refer to deterrence they generally tend to mean general deterrence rather than specific deterrence and tend to view specific deterrence under the definition of rehabilitation.1264
1260 Rabie Theories of Punishment 12; Andenaes “The General Preventive Effects of Punishment” 949 952 955. 1261 S 2 of the Correctional Services Act provides that purpose of correctional system is to contribute to maintaining and protecting a just, peaceful and safe society by enforcing sentences of the courts. Thus, within the larger crime prevention system, its contribution is enforcing court orders. However, when defining its own purpose as the correctional service the Act provides that “correction” means provision of services and programmes aimed at correcting the offending behaviour of sentenced offenders in order to rehabilitate them. 1262 Paternoster “How Much Do We Really Know About Criminal Deterrence?” 765. 1263 S v Mhlakaza 1997 1 SACR 515 (SCA) 519. 1264 See S v Makwanyane supra as an example of this. The discussion from paragraph 116 until paragraph 127 is headed “deterrence”. This is concerned with the general level of crime in society. Not whether the individual offender will be discouraged from re-offending, that is, general deterrence. However where the likelihood of the individual is re-offending is discussed this is done particularly in the context of rehabilitation (see par 242); Andenaes “The General Preventive Effects of Punishment” 949 952 953.
265
When the term deterrence is employed in this study it will be used in the sense of general deterrence unless the contrary is specified, or is apparent from the context.
2.3 PREVENTION
Jurists generally divide prevention into general and specific.1265 They argue that the theories of general prevention are justified by keeping people law abiding. People are restrained from committing crimes by the threat of punishment rather than by the imposition of punishment.1266
Rabie divides general prevention into four theories, namely general deterrence, the socialising function of the criminal sanction, the habituative function of the criminal sanction and the morale-sustaining function of punishment.
General deterrence is discussed above. The socialising function of the criminal sanction contains the idea that punishment is a concrete expression of society's disapproval of an act and thus helps to form and strengthen the public's moral code. In this way it thereby creates conscious and unconscious inhibitions against committing crime.1267 When society expresses its disapproval of a criminal act with the consequent stigma attached thereto, then it is often rather the fear of this social stigma, rather than the fear of punishment per se, which prevents people from committing crimes.1268 This is also considered by economic theorists under the heading of general deterrence and for the purposes of this study will also be considered under that heading.
Rabie’s argument is that people are regularly confronted by the option of committing a crime or not. Normally those in society are dissuaded from committing a crime by the general threat of punishment. This regular rejection of the criminal option becomes habitual or automatic. This then gives the theory its name, namely, the
1265 Andenaes “The General Preventive Effects of Punishment” 949 951. 1266 Rabie Theories of Punishment (1977) 12. 1267 Rabie Theories of Punishment 16. 1268 Ibid.
266 habituative function of the criminal sanction.1269
The morale-sustaining function of punishment similarly sustains those who obey the law. These elements are not relevant to this study and therefore will not be considered.
Prevention is not mentioned in the Correctional Services Act. However the economic theorists are concerned with crime prevention. In particular they study the impact of punishment and the threat of punishment on crime rates in a particular society. Therefore their studies are concerned with general deterrence. On the other hand general deterrence/prevention is not discussed by the theorists who embrace the medical model. Their concern is primarily that of a change brought about in a particular offender who, after a process of medical type-interventions, elects not to continue offending.1270
When the South African courts discuss prevention during the course of sentencing they do not distinguish between general and specific prevention. It may therefore be presumed that they are referring to both general and specific prevention.
In this research the term prevention will be used in the limited sense of individual prevention or incapacitation. The concept is based on the belief that, whilst in prison, people do not and cannot commit crime. Alternatively, if a person with a propensity for committing crime is removed from society, he will cease committing crimes in society since he is restrained from doing so. This is considered by Rabie under social defence theory.1271
2.4 RETRIBUTION
Retribution is most effectively explained by the lex talionis, the principle that claims justice is served when the eye of the offender is taken because he took the eye of the
1269 Rabie Theories of Punishment 17. 1270 Vida infra. 1271 Rabie Theories of Punishment 4.
267 victim. It is thus an act in retaliation or a return for an offence committed.1272 This is also referred to as the deontological theory or moral-based theory of punishment.1273 Retribution, it has been argued, is based upon the reinforcement of moral inhibition while under deterrence theory the mechanism is fear.1274
The theories underlying each individual purpose of punishment will now be discussed.
3. THE THEORIES
3.1 PREVENTION
3.1.1 JURISTS
Jurists place the theory of specific prevention or incapacitation under the category of individual prevention. They argue that this theory is based upon the assumption that a person who has committed a certain crime will probably repeat his criminal behaviour unless he is in some way restrained. The phrase employed in the United States of America is protection of the community, that is, that society is safeguarded through the removal of the offender, either temporarily or permanently from society.1275
The theory finds application in the removal of the offender either from society, for example, via imprisonment, or by removing his ability to offend, for example, through chemical castration.1276
1272 Rabie Theories of Punishment 2. 1273 Dubber “Theories of Crime and Punishment in German Criminal Law” 679 696. 1274 Cohen “Introduction to the Theory, Justifications and Modern Manifestations of Criminal Punishment” 73 75. 1275 Cohen “Introduction to the Theory, Justifications and Modern Manifestations of Criminal Punishment” 73 79. 1276 Stinneford “Incapacitation through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity” (2006) Vol 3 University of St Thomas Law Journal 559.
268 3.1.2 COMMON LAW
The notion of incapacitating the individual offender, that is removing the offender from society in order to protect society, is not one that is explicitly embraced in South Africa. This concept is alluded to in S v M1277 where, in a footnote, reference is made to a South African Law Commission report of 2000 in which the incapacitation of the offender is expressly mentioned. The court refers to the South African Law Commission Report on a New Sentencing Framework Project 82 (November, 2000) at paragraph 1.1 and addresses the question of whether sentences imposed by the courts express public condemnation of the crime adequately and whether they protect the public against future crimes by the reform and incapacitation of offenders and by deterrence of both the individual offender and other potential offenders. The court does not take the matter further and merely raises it obiter.
In the matter of Stanfield v Minister of Correctional Services and Others1278 the court rejected the argument that a terminally ill patient should remain incarcerated because there was a possibility that he would re-offend. The court held that that it was unlikely that he would re-offend. Therefore he was, in effect, seen to be already incapacitated.
Incapacitation of the offender manifests itself in different forms. For example, in South Africa the legislature provides for preventative indefinite incarceration of 1279 persons declared to be dangerous criminals. Forms of preventative punishment that involve the application of violence to the person of the offender, it is submitted, are not permitted in our law.1280 In other jurisdictions other forms of preventative punishments are permitted. For example in Nigeria amputation is permitted for certain offences,1281 and in certain states in the United States of America chemical castration is permitted.1282
1277 2008 (3) SA 232 (CC). 1278 2003 (12) BCLR 1384 (C) in fn on pg 5. 1279 Criminal Procedure Act 51 of 1977, s 286A and s 286B. 1280 S v Makwanyane supra; S v Williams supra. 1281 Law 7/2000: A Law to Establish Shari`a Courts in Jigawa State, Sharia Penal Code, 2000 (Nigeria). 1282 S 645 of the California Penal Code; Stinneford “Incapacitation through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity” 559.
269
In South Africa the indefinite incarceration of habitual individual offenders is not justified on the basis of incapacitation. In S v Niemand1283 the court was called upon to adjudicate upon the constitutionality of an indeterminate sentence for a person convicted of an offence and who has been declared a habitual criminal in terms of section 286 of the Criminal Procedure Act1284 as read with section 65(4)(b)(iv) of the Correctional Services Act.1285 The provision stated that the person so detained was to be detained for at least seven years without the possibility of release on parole, but did not provide for a maximum penalty. The court was faced with three broad questions, namely: whether these provisions offend sections 12(1)(e), 9(1) and 34 of the Constitution;1286 whether the possibility exists that a person may be detained without any prospect of release for the balance of his or her life and; finally, whether the courts were not shirking their responsibility of determining sentence when they allowed the parole board to determine the period for which a convicted person would stay in prison?1287
Section 286 of the Criminal Procedure Act1288 provided that when a Regional Court or a High Court is satisfied that a person habitually commits offences and that the community should be protected against him, it may then declare him to be a habitual criminal. This would be in lieu of any other penalty which the court would have imposed. This determination is discretionary and even if the required factors are present the court need not make the determination.1289
The court considered the meaning of section 65(4)(b)(iv) of the Correctional Services Act and found that upon a proper construction it provided for an indefinite sentence. It is the parole board which makes a final determination when the offender is
1283 2001 (11) BCLR 1181 (CC). 1284 51 of 1977. 1285 8 of 1959. 1286 200 of 1993. 1287 Par 4. 1288 51 of 1977. 1289 Par 9 the court held that the following findings must be made prior to a person being declared a habitual criminal: that the person habitually commits crimes; that detention for at least seven years is the right protection of the community against him/her; that he/she is not under the age of eighteen years; and that the punishment does not warrant that the accused be sentenced to a term of imprisonment exceeding fifteen years.
270 released from prison.1290 The court adopted the disjunctive approach to the interpretation of section 12(1)(e) of the Constitution1291 and found that this section infringed the offender’s right to dignity because the determination of his sentence was subject to the caprice of the executive: in this case the parole board. Thus the punishment was deemed unconstitutional.1292
The court held that habitual criminals are a nuisance to society but they are not a menace that warrants incarceration for life.1293 They are to be removed from society, not for the good of society, but for the purpose of rehabilitating them.1294 Thus, the court expressly rejected the notion of incapacitation in favour of rehabilitation.
The court remedied the unconstitutionality of the section by ordering that section 65(4)(b)(iv) of the Correctional Services Act 8 of 1959 is to be read as though the following words appear therein after the word parole: “Provided that no such prisoner shall be detained for a period exceeding 15 years”.
The only other similar sentence which exists is the declaration of a person as a dangerous criminal in terms of section 286(A) of the Criminal Procedure Act. This provision however obliges the court to review the situation of the accused upon the expiration of a period determined by it. A person is to be declared an habitual criminal where it is satisfied that the convicted person represents a danger to the physical and mental well-being of others and that the community needs to be protected against him. Section 286(A) of the Criminal Procedure Act thus does represent a clear example of incapacitation in South African law, but it is submitted, that this is an exception and not the general rule. For this reason it must be expressly legislated upon. Incapacitation has also been indirectly incorporated into our law in the context of asset forfeiture by removing the means of the commission of the offence.1295
1290 Paras 16, 17 and 18. 1291 Par 22. 1292 Par 26. 1293 Par 25. 1294 Par 24. 1295 Lameck and Another v President of Republic of Namibia and Others (A 54/2011) (2012) NAHC 31 (20 February 2012 39 SAFLII
271
It is submitted therefore, that the general rule in our law is that incapacitation is not a consideration when determining the purposes of punishment, or if it is, then it is a minor consideration.
3.1.3 ASSESSMENT OF THE THEORY
There are compelling reasons that explain why incapacitation should not to be a consideration, or only to be a minor consideration, when determining the purposes of punishment in relation to prisoner rights. These include the revolving doors of crime1296 (the high rate of recidivism means that offenders who are discharged tend to be recaptured by the system shortly after their release from incarceration), the displacement effect (in economic crimes new players tend to take the place of those incarcerated),1297 the movement of crime from society into prison making it a violent place and itself then engendering a criminogenic effect on other offenders1298 and the increased price premium on the offending act. For example, in the case of drug dealing, as the risk increases so does the cost of the product: the increased price paid to those participating in the activity, then attracts more participants into the illegal activity.
In other words, incapacitation may incapacitate particular offenders from offending in society, for a time, whilst incarcerated. However, other offenders take their place in society and those who have been incarcerated are often more likely to recidivate on their release than they would have been prior to their incarceration.1299
NAHCMD 5 (16 January 2013) SAFLII
272 It is important from a policy point of view to be aware of the distinction between incapacitation and deterrence since a drop in crime rates after mass-incarceration may be due to one or the other - or a combination of the two.
3.2 RETRIBUTION
3.2.1 JURISTS
Historically retributivist theory was proposed in response to the utilitarian concepts of Jeremy Bentham. The response was that of Immanuel Kant who maintained that juridical punishment can never be administered merely as a means for promoting another good, either with regard to the criminal himself or to civil society. Punishment must in all cases be imposed only because the individual on whom it is inflicted has committed a crime. The reason for this is that a man ought never to be dealt with merely as a means subservient to the purpose of another.1300
Retribution is an act in retaliation for an offence committed. Thus, it is seen as a form of vengeance taken by the state against the offender on behalf of both society, whose rules have been broken, and the victim, whose rights or bodily integrity have been infringed.1301 Rabie argues that this theory is premised upon the belief that the offender should suffer because it is felt that he deserves to suffer. His suffering is not imposed because it is good for him (as it might be when his guilt is purged by suffering) nor because suffering might deter him from further crime. This view constitutes the essence of retribution.1302
Rabie further explains that there are two perspectives from which retribution can be viewed, namely, from the perspective of the community and from the perspective of the offender. From the perspective of the community, retribution represents some kind of proportion between punishment and the seriousness of the offence as reflected in the moral blameworthiness of the offender for the harm that he has
1300 Von Hirsch “Proportionality in the Philosophy of Punishment” (1992) Vol 16 Crime and Justice 55 60. 1301 Weinreb “Desert, Punishment, and Criminal Responsibility” (1986) Vol 49 No 3 Law and Contemporary Problems 47 52. 1302 Rabie Theories of Punishment 4.
273 caused to society.1303 From the perspective of the individual, retribution offers him an opportunity to atone for his crimes through the punishment that he receives.1304
Rabie argues that a duty is imposed on the state to exercise its power on behalf of its subjects and to prevent and combat crime with a view to protecting the community. The purpose of government is therefore not merely to ensure justice but also to protect its citizens from crime and therefore retribution cannot be the sole purpose or justification for punishment. In other words, the emphasis should not primarily be on the offender and society’s response to him, but rather on society at large, and its protection.1305
Rabie is of the view that retribution cannot imply that punishment is equal in kind to the harm that the offender caused. However it does imply that there should be an adequate proportion between the punishment and the seriousness or gravity of the crime.1306 This argument is to some extent a fiction, in the sense, that it is arbitrary to attempt to equate a crime, such as for example, shoplifting an inexpensive item, with a period in prison. There can be no true equivalency. What can be said is that the criminal deserves to be punished because he committed a crime.1307
Rabie argues that criminal law and the retributive theory are interwoven and in sense inseparable. Retribution is the only true theory of punishment: rehabilitation or prevention are not truly theories of punishment, since they do not need to be linked to the commission of a specific offence in any way. In other words, it is possible to rehabilitate or prevent a person from committing a crime where he has not yet offended, but might offend in the future. In this case the punishment will not be linked to the commission of an offence.1308
Rabie argues that general prevention can work by punishing an innocent person and
1303 Rabie Theories of Punishment 2. 1304 Ibid. 1305 Rabie Theories of Punishment 3. 1306 Ibid. 1307 Gardiner “The Purposes of Criminal Punishment” (March 1958) Vol 21 No 2 The Modern Law Review 117 120; Weinreb “Desert, Punishment, and Criminal Responsibility” 47. 1308 Rabie Theories of Punishment 20.
274 then claiming that the person punished was an offender. Thus, it would involve making an example of someone innocent, who is portrayed as an offender. This will have the same preventative effect as punishing someone who is guilty of an offence. Retribution is therefore a safeguard for all in society in that society will only punish those who are convicted of an offence.1309
He furthermore argues that if the goal is simply the prevention of crime, then society could also punish those who show criminal tendencies, prior to the commission of a crime, as a preventative measure. Here again the innocent are protected by retribution.1310
If the goal of punishment were primarily reformative, then it would be justifiable to take such steps as are necessary to reform offenders even where they are grossly out of proportion to the offence. For example, it may be necessary to incarcerate a person who stole a loaf of bread from a shop for a period of thirty years in order to reform him. The argument is that if the penalty were to be purely reformative, then any sentence could be justified to “cure” the offender. Thus, the question of what he deserved would be removed, as would true justice. Rabie argues that by relating the justification of punishment to its expected consequences, rather than to the gravity of the crime and the offender's blameworthiness, severe penalties for trivial offences could be justified, i.e. if the imposition of such penalties were the only means of reducing such offences.1311
Furthermore, if the aim of punishment is purely to reform, then it follows that if the particular offender in question is clearly not going to repeat the offence then there should be no need to punish him. Rabie further states that the theory of retribution protects the innocent from punishment and also protects the guilty by limiting the punishment to fit the gravity of the crime.1312
Rabie concludes by making the point that the victim and the community desire a form
1309 Rabie and Strauss “Punishment and Introduction to Principles” 43. 1310 Ibid. 1311 Rabie Theories of Punishment 20. 1312 Ibid.
275 of revenge. This requires that offenders be punished. When the state fulfills this function properly then it satisfies that need in the individual, thereby preventing him from taking the law into his own hands.1313
Retributivist theorists have also wrestled with the following problem: why do wrongdoers deserve punishment? The first explanation that has been suggested is the benefits and burdens theory. This theory states that law is a jointly beneficial enterprise. The law requires that each person desist from predatory conduct. When an individual desists, that individual not only benefits others but is benefited by the reciprocal self-restraint of others. The individual who victimizes others while still benefiting from the self-restraint of others obtains an unjust advantage. Punishment therefore seeks to impose an offsetting disadvantage.1314
The second group of theorist who seek to explain why wrongdoers deserve to be punished are the “expressive” theorists. These theorists argue that punishing a person is not merely doing something painful or unpleasant to him because he has committed a wrong. In addition there is a communication to the offender of disapprobation regarding his conduct. For example, the difference between tax and a fine is not the nature of the loss to the individual concerned. In both instances the individual could lose the same amount of material goods. The difference lies in the fact that with a fine the money is taken in a manner that conveys disapproval or censure, whereas with a tax no disapprobation is implied.1315
This so-called expressive school of thought also tenders an explanation of the proportionality principle. Punishment involves unpleasant consequences for the offender under certain circumstances, and in a manner that conveys blame or disapprobation. According to this argument the greater the crime the greater the consequence: this also conveys with it a greater sense of disapprobation. This therefore means that the same or similar crimes must receive substantially the same punishment - and those crimes that are more serious must receive a greater punishment.
1313 Rabie Theories of Punishment 21. 1314 Von Hirsch “Proportionality in the Philosophy of Punishment” 55 66. 1315 Von Hirsch “Proportionality in the Philosophy of Punishment” 55 67.
276
Therefore, when punishments are compared in severity according to the seriousness of the offences, the extent of the disapprobation conveyed will reflect the degree of disapprobation attached to the offence. If this were not so then the punishments become unfair, that is, the proportionality principle is discarded.1316
The importance of this argument lies in the very nature of what constitutes a crime. What distinguishes a crime from a delict, or a crime from a tax, is not the consequence per se. Having to part with money as a consequence of actions, in the case of a fine, is the same for a delict or a tax. The critical difference is society’s censure or disapprobation of the act committed. This moral condemnation of the act committed with the requisite mens rea is the basis of the substantive criminal law.1317
3.2.2 THE COMMON LAW
Retribution is the demand for vengeance by the members of the community that suffered harm thanks to the conduct of an individual.1318 It is a fundamental principle of our law that vengeance for harm suffered must be sought through the public criminal process and not by self-help. To rely upon personal self-help for vengeance would be unlawful.1319
When deciding upon what constitutes an appropriate punishment the court should consider a triad of factors, i.e. the crime, the offender and the interests of society.1320 The court is then required to give due regard for the purposes of punishment which include deterrence, prevention, reformation and retribution.1321
Generally speaking retribution has tended to become less important than the other aspects of punishment, namely, correction and prevention. It is deterrence that has
1316 Von Hirsch “Proportionality in the Philosophy of Punishment” 55 70. 1317 Von Hirsch “Proportionality in the Philosophy of Punishment” 55 71. 1318 Furman v Georgia 408 US 238 344-5 (1972). 1319 S v Eadie (196/2001) 2002 ZASCA 24 (27 March 2002) SAFLII
277 been described as the “essential”, “all important”, “paramount” and “universally admitted” object of punishment.1322 Retribution is one of the objects of punishment, but it carries less weight than deterrence.1323
As a general rule retribution is regarded by our courts as being of secondary importance to the rehabilitation of the offender1324 or discouraging him from re- offending (specific deterrence).1325 In the case of serious crimes there is a greater emphasis on retribution and the consequent element of deterrence than on rehabilitation.1326 A very long prison sentence is also a way of expressing outrage and of visiting retribution upon the offender.1327
However, unduly prolonged imprisonment brings about the complete mental and physical deterioration of the prisoner and wrongdoers must not be visited with punishments to the point of being broken.1328 Our courts therefore do not place undue emphasis on retribution and vengeance, but focus rather on correction, prevention and the recognition of human rights 1329: hence the individual’s rights should not be unduly subordinated even to the goal of deterrence.1330
Retribution also serves the function of deterring potential offenders in that it is the execution of the threat held out by our legal system to potential offenders, that is,
1322 S v J 1989 (1) SA 669 (A) 682G; S v P supra 523G-H; R v Swanepoel 1945 AD 444 453-455. 1323 S v P supra 523D-F. 1324 S v Khumalo and Another 1984 (3) SA 327 AD 330E; R v Swanepoel supra 451; R v Karg 1961 (1) SA 231 at 236A-B; S v Daniel (CC 05/2011) 2011 NAHC 351 (25 November 2011) SAFLII
278 general deterrence.1331 The theory of retribution protects the guilty by limiting the punishment to the gravity of the crime.1332
Punishment is to be administered consistently and not arbitrarily or capriciously: in other words, the amount of the suffering experienced by an offender should not be substantially different from that suffered by any other offender who is found guilty of a similar crime.1333
The position as expressed in the Correctional Services Act will be considered next.
3.2.3 THE CORRECTIONAL SERVICES ACT
It is a fundamental rule of international prison law that imprisonment is a punishment in and of itself and therefore conditions of imprisonment shall not aggravate the suffering inherent in imprisonment. This rule is a logical corollary of the rule that any limitation of a prisoner’s rights is to be the minimum necessary limitation and is to be proportionate to the legitimate objective for which the limitation is imposed.1334
The rule therefore has been expressed as an obligation upon the authorities not to cause distress to prisoners that exceeds the unavoidable level of suffering inherent in imprisonment,1335 since the deprivation of liberty and self-determination is the actual punishment and prison is not intended to be a place for punishment. Therefore the prison system shall not, except as incidental to justifiable segregation for the maintenance of discipline, aggravate the suffering inherent in such a situation.
1331 Chu v S (A407/11) 2012 ZAGPJHC 204 (13 March 2012) SAFLII < http://www.saflii.org/za/cases/ZAGPJHC/2012/204.html > (accessed 17-02-2013). 1332 S v Mzayifani and Others (CC 13/09) 2012 ZAECPEHC 21 (11 April 2012) SAFLII
279 In other words imprisonment should not include any additional punitive elements,1336 since it is by its very nature afflictive in that it deprives the prisoner of the right of self- determination and deprives him of his liberty. The manner in which prisoners are treated shall therefore not aggravate the suffering inherent in imprisonment.1337 Thus, prisoners are sent to prison as punishment and not for punishment - and the method in which they are cared for and treated must therefore not be punitive.1338
Prison staff are therefore not entitled to inflict additional punishments on prisoners by treating them in a manner that is not consistent with humane conditions of imprisonment.1339 This rule finds expression in the Correctional Services Act1340 which provides that the purpose of the correctional system is to contribute to the maintenance and protection of a just, peaceful and safe society by detaining all prisoners in safe custody, in accordance with the sentence of the court, whilst ensuring their human dignity,1341 rehabilitating them and socially re-integrating them.1342 To put it another way, the retributive element of punishment is achieved when the prisoner serves the sentence of the court whilst detained under conditions consistent with human dignity and with the aim of rehabilitating and re-integrating the prisoners.1343
Therefore, when considering the purposes of punishment from a prisoner-rights perspective this aspect should not be of great importance. Retribution is served by
1336 UNSMR 57; EPR Rules 6 and 102; The Kampala Declaration On Prison Conditions In Africa Art 4. 1337 UNSMR Art 57; EPR Rule 102(2); The Kampala Declaration On Prison Conditions In Africa Art 4; South Africa, Correctional Services Act s 42. 1338 Prison Reform International Making Standards Work: An International Handbook On Good Prison Practice 117. 1339 Coyle A Human Rights Approach to Prison Management 31. 1340 111 of 1998, more particularly s 2 thereof. 1341 What constitutes conditions of detention consistent with human dignity is set out in Chapter 3 of the Correctional Services Act. These general outlines are given expanded upon in Chapters 2 and 3 of the Regulations to the Act (R. 323). These Regulations detail what conditions constitute conditions of detention consistent with human dignity and what the state is obliged to provide including floor area, lighting requirements, bedding, health care etc. However, the failure to comply with these standards does not necessarily mean that the conditions of detention violate the prohibition against cruel, inhuman or degrading treatment or punishment. That is a value decision to be made by the court on an ad hoc basis. In this regard see B and others v Minister of Correctional Services and Others supra which specifically enjoins an ad hoc approach to decisions of that nature. 1342 S 2 Correctional Services Act. 1343 Ibid.
280 the offender serving the sentence which the court has imposed on him. However, what is of importance is that the punishment is to be administered consistently and not arbitrarily or capriciously. In other words, the amount of suffering experienced by an offender should not be substantially different from that suffered by any other offender who is found guilty of a similar crime.1344 The implication of this is that one prisoner should experience substantially the same level of suffering as does another. Therefore, logically, the conditions of detention in which prisoners are kept in different prisons throughout the country, or even within the same prison, should be substantially the same.
3.3 GENERAL DETERRENCE
3.3.1 JURISTS
According to this theory the criminal law and the legal machinery exert a general restraining influence in society. Messages, or threats, are sent to members of society via the medium of the criminal law stating which actions are crimes and what penalties follow if those actions are committed. The police, the courts and the various mechanisms of punishment, such as the prison service, then through their actions and statements reinforce these messages by showing that the threats made were not hollow threats but were followed by action. Thus, for the general threat, or message, to be effective the offence, once committed, must be punished in the manner which was initially specified.1345
This theory falls under the umbrella of utilitarian or consequentialist theories of crime prevention. It is premised on the assumption that human beings are rational creatures and if the price or disadvantage attached to the offence is sufficiently high then this will discourage the potential offender from offending.1346
Gardiner1347 commences the discussion of the effect of general deterrence by citing
1344 Vida supra. 1345 Rabie Theories of Punishment 12; Gardiner “The Purposes of Criminal Punishment” 117 121; Andenaes “The General Preventive Effects of Punishment” 949. 1346 Von Hirsch “Proportionality in the Philosophy of Punishment” 55 57. 1347 Gardiner “The Purposes of Criminal Punishment” 117.
281 three examples which question the underlying assumptions of such deterrence. The first example is that during the time of Queen Elizabeth I it was a capital offence to pick pockets: however despite this deterrence law pickpockets were regularly seen busily picking pockets amongst the crowds which had gathered to watch the executions of other pickpockets who had been caught and condemned to die. The second example cites evidence that was given before the Royal Commission on Capital Punishment, 1866. A chaplain of Bristol Gaol testified that out of 167 persons whom he had prepared for execution 161 had actually witnessed an execution. The third example cites the history of severe judicial flogging as a punishment for committing robbery with violence in England. Common sense would suggest that such a harsh punishment would deter people from committing the offence. However studies over a period of 75 years indicated that there was no evidence that this penalty had had any impact on the frequency with which the crime was committed. The penalty was then abolished. Following the abolition of the harsh penalty there was a steady decrease in the incidence of that crime, during a time when other crimes of violence had increased.1348
Hence this theory is regarded as a theory of psychological coercion.1349 Rabie argues that it is premised on the assumption that man is a rational creature who refrains from the commission of crimes because he is aware of the unpleasant consequences of punishment that will follow the commission of certain acts.1350
Rabie recognises criticisms of the theory: these include references to offences committed on the spur of the moment. General deterrence is furthermore more a function of law enforcement than it is of sentencing. It only works if the probability of detection and conviction is great. It will not work if there is only a very slight chance of conviction.1351
General deterrence also has a socio-pedagogical function. In addition to merely holding out a threat it is also intended to convey to the society what acts carry with
1348 Gardiner “The Purposes Of Criminal Punishment” 117 121. 1349 Rabie and Strauss Punishment and Introduction to Principles 43; Andenaes “The General Preventive Effects of Punishment” 949 951. 1350 Rabie Theories of Punishment 12. 1351 Rabie Theories of Punishment 14-15.
282 them the moral disapprobation of society. Furthermore, the legal criminal system when it punishes also reinforces the moral message that was initially communicated. Stated differently, when a crime is committed the moral convictions of the society may be altered or weakened, but when punishment for that act is executed then that initial moral message is reinforced.1352
The idea of attaching a price or a significantly disadvantageous consequence to a particular offence underlies much legislation which criminalizes certain acts and is also very influential in court decisions which seek to communicate a message of disapprobation to society in order to discourage other potential offenders.
3.3.2 THE COMMON LAW
The South African courts consider general deterrence to be an important component of punishment and routinely consider it when passing sentence.1353 This theory of general deterrence relies on the idea that there is a formal communication between the state and the population in terms of which the state presents a threat of punishment to individuals should they elect to commit a crime.1354 Offenders are then denounced in court. Again, this is a formal communication to the society, advising that the threat that had been made is to be carried out.1355
Finally, the individual offender is made an example of by punishing him. This illustration is again a formal communication to the society at large, demonstrating that the state is serious about the prevention of crime.
Deterrence has been described as the “essential”, “all important”, “paramount” and “universally admitted object of punishment”.1356 When the courts refer to deterrence they are referring to both specific and general deterrence.1357 However, it is usually
1352 Andenaes “The General Preventive Effects of Punishment” 949 950. 1353 Kruger v S 2012 1 SACR 369 (SCA); S v Van de Venter 2011 1 SACR 238 (SCA). 1354 For example s 51 of the Criminal Law Amendment Act 105 of 1997. 1355 Samuels v S 2011 1 SACR 9 (SCA). 1356 S v J supra 682G; S v P supra 523G-H; R v Swanepoel supra 453-455. 1357 S v Mhlakaza supra 519.
283 general deterrence rather than specific deterrence that they refer to while the latter is covered under the definition of rehabilitation.1358
In the case of serious crimes there is a greater emphasis on retribution and the consequent element of deterrence than on rehabilitation.1359 A very long prison sentence is also a way of expressing outrage and visiting retribution upon the offender.1360 However, unduly prolonged imprisonment brings about the complete mental and physical deterioration of the prisoner and wrongdoers must not be visited with punishments to the point of being broken.1361 Our courts therefore do not place undue emphasis on retribution and vengeance, but focus rather than on correction, prevention and the recognition of human rights1362: they accept that the individual’s rights should not be unduly subordinated even to the goal of deterrence.1363
The importance of general deterrence can be seen in the sentences of courts when pronouncing upon offences that are prevalent in society. Where the offence is particularly prevalent then the court will generally impose a more severe sentence.1364
Although the general view is that more severe sentences should be imposed for more serious offences, our courts have held that the law of diminishing returns applies. A point is reached after which additions to the length of a sentence produce progressively smaller increases in deterrent effect: it is recognized that it is not in the public interest that potentially valuable human material should be seriously damaged
1358 S v Makwanyane supra par 117. 1359 S v Swart supra; S v Mzayifani and Others (CC 13/09) 2012 ZAECPEHC 21 (11 April 2012) SAFLII
284 by long term incarceration.1365 In other words, the offender should not be sacrificed on the altar of deterrence.1366
The rational choice model also predicts that the higher the cost of offending, the lower the likelihood of further incidence of that offence.1367 As a general rule, our courts adhere to this rational choice model, namely, that the more severe the punishment the greater its deterrent effect.1368 This is a view that was partially rejected by our courts when considering the death penalty since the death penalty is notionally the highest cost that can be associated with an offence.1369
There is a general recognition that long term imprisonment is of such a nature that even though the courts accept its general deterrent effect they are of the view that this will cause an increase in recidivism, that is, it will have a negative impact on rehabilitation.1370
The belief that a threat of increased punishment will have a greater deterrent effect is the basis for minimum sentence legislation1371 and this in turn impacts upon incarceration levels. Thus, the level of crime in society is not the reason for crowding in South African prisons: this can be attributed rather to legislation such as minimum sentencing legislation.
1365 S v Skenjana 1985 (3) SA 51 (A) 54I-55E. 1366 S v Sobandla 1992 (2) SACR 613 (A) 617G - H; S v Skenjana supra. 1367 This model more importantly predicts that the higher the likelihood of detection the greater the deterrent effect of punishment. There is empirical support for this view. This means that in deterring crime the primary burden falls on policing, prosecution and the courts and not on the Department of Correctional Services. 1368 S v Swart supra; S v Mzayifani and Others (CC 13/09) 2012 ZAECPEHC 21 (11 April 2012) SAFLII
285 3.3.3 THE ECONOMIC THEORIST APPROACH
3.3.3.1 BACKGROUND
The notion of deterrence was part of the intellectual enlightenment response to the harsh punishments of the preceding period. The two authors who created the deterrence framework were Beccaria and Bentham.
The enlightenment philosopher, Cesare Beccaria1372, argued in 1764 that certain and severe punishment would offset the anticipated gains of crime while Jeremy Bentham proposed the argument that human beings are rational and will add up the sum of all the values of all the pleasures on the one side, and of all the pains on the other. If the individual concludes that the utility of crime outweighs the disutility of crime then he would choose to offend, and vice versa.1373
Thereafter deterrence theory largely fell into desuetude caused by a belief that the causes of crime are to be attributed to individual pathology.1374 These theories, which are not of relevance to this research, were concerned with the causes of crime in an individual. The theories that were proposed were that crime was caused by a pathology or defect from which the criminal suffered and furthermore, that this was as a result of a genetic defect. Thus, criminals were born as criminals and simply had to be identified. The traits that born criminals supposedly possessed included unusual size or shape of the head, strange eyes, facial asymmetry, extended jaw and jaw bone, too big or too small ears, and full lips leaned forward. These theories culminated with the studies in the early twentieth century of Cesare Lombroso.1375
In 1968 general deterrence theory was revived by Gary Becker who put forward the argument that rational individuals choose to offend, based upon the balancing of
1372 Cesare On Crimes And Punishments (Henry Paolucci translation) Macmillan (1986) (1764). 1373 Bentham The Principles of Morals And Legislation (Prometheus Books 1988) (1789). 1374 Paternoster “How Much Do We Really Know About Criminal Deterrence?” 765 771. 1375 Ellwood Journal of the American Institute of Criminal Law and Criminology (1912) Vol 2 No 5 716 717.
286 utility and disutility.1376 Sociologist Jack P Gibbs’ further renewed interest in deterrence theory by laying a foundation for empirical testing in that he wanted to establish whether punishment was effective in reducing crime. 1377
In the 1980s two important additional components, or modifications, were added to the above model. The first of these was the element of perception of sanction threats and the relationship between those perceptions and subsequent behaviour.1378 The second component involved the addition of a number of factors that formed part of the disutility of offending, such as the threat of legal punishment and inhibition due to the threat of social censure, commitment costs,1379 and any self-imposed1380 costs.1381
Rational choice models of crime included the full range of anticipated benefits and costs of crime. Deterrence theorists base their work on the assumption that human beings are self-interested and are rational. Based on those two factors they then choose whether or not to commit crimes. This implies that there are no persons who are inherent criminals, but rather that any person can offend.
3.3.3.2 THEORETICAL CONSTRUCTION
A very simple equation to express the basic premise of the deterrence theory is that an individual will decide to offend if:
U(Crime) = p1 (Benefits of Crime) + p2 (Costs of Crime) + p3 (Benefits of Non-Crime) + p4(Costs of Non-Crime)1382
1376 Becker “Crime and Punishment: An Economic Approach” (1968) 76 Journal of Political Economics 169. 1377 Gibbs “Crime, Punishment, and Deterrence” (1968) Southwestern Social Science Quarterly 515. 1378 Nagin “Criminal Deterrence Research at the Outset of the Twenty-First Century” (1998) 23 Crime and Justice 1. 1379 For example the loss of employment. 1380 For example personal experiences of guilt if caught. 1381 Nagin and Pogarsky “Integrating Celerity, Impulsivity, And Extralegal Sanction Threats Into A Model Of General Deterrence: Theory And Evidence” (2001) 39 (4) Criminology 865. 1382 Paternoster “How Much Do We Really Know About Criminal Deterrence?” 765 783.
287
This equation states that the utility of crime is equal to the sum of the benefits of crime, the costs of crime, the benefits of non-crime and the costs of non-crime. The “p” multiple reflects the probability or what can be anticipated, as opposed to the actual outcome.
In the above equation the benefits of crime would include immediate financial gain. The costs of crime would include the costs attached to being apprehended, such as for example, going to prison. The benefits of non-crime could include, for example, having stable employment. Finally, the costs of non-crime could include, for example, low paying employment.
The cost of crime includes legal punishment. Legal punishment has three components that affect its costs, namely, certainty, severity and celerity (swiftness). Certainty relates to the likelihood of apprehension. The theory is that the greater the likelihood of apprehension the greater the cost; the greater the severity of punishment the greater the cost and finally, the greater the celerity of the punishment, again the greater the cost.1383 These three components are the objective (actual) properties of punishment. They are to be contrasted against the subjective (perceptual) properties of punishment.
The above leads to three hypotheses:1384
Hypothesis 1: The greater the certainty of legal punishment, the lower the crime rate. Hypothesis 2: The greater the severity of legal punishment, the lower the crime rate. Hypothesis 3: The greater the celerity of legal punishment, the lower the crime rate.
Legislators and courts presume that an increase in the second hypothesis is materially linked to a reduction in crimes rates. There have been criticisms of the rational choice model underlying deterrence theory and these criticisms are based on
1383 Ibid. 1384 Paternoster “How Much Do We Really Know About Criminal Deterrence?” 765 784.
288 the fact that not all crimes are decisions following rational choice per se, but may be based on an absence of moral education - or may be a result of habit.1385
Deterrence theorists must further presume that there is a strong positive correlation between the objective (actual) and subjective (perceptual) properties of punishment. Without a perception change related to a factual change of the above elements the theory cannot stand because the actors are not perceiving the changes and therefore will not alter their behaviour.1386
The above leads to a further three hypotheses:1387
Hypothesis 1: An inverse relationship between the objective properties of punishment1388 and the crime rate must be demonstrated.
Hypothesis 2: A positive relationship between the objective properties of punishment and the perceptual properties must be demonstrated.
Hypothesis 3: An inverse relationship between the perceptual properties of punishment and measures of criminal offending must be demonstrated.
The above three hypotheses must be tested. In order to do so a process of causal crime deterrence must be demonstrated. That is, a reduction in crime rates must be proved to be due to a particular policy change. This is a three-phase process.
The first phase is to ascertain whether a particular criminal justice policy or practice change has resulted in a reduction in crime. If this relationship can be empirically ascertained then, it can be attributed to a deterrent effect only if:1389firstly, there is a link between the aforesaid changes and perceptions of those changes on the part of
1385 Tonry “Learning from the Limitations of Deterrence Research” (2008) Vol 37 No 1 Crime and Justice 279 292. 1386 Paternoster, Saltzman and Waldo “Perceived Risk and Social Control: Do Sanctions Really Deter?” (1983) Vol 17 No 3 Law & Society Review 457. 1387 Paternoster “How Much Do We Really Know About Criminal Deterrence?” 765 786. 1388 Certainty, severity and celerity. 1389 Paternoster “How Much Do We Really Know About Criminal Deterrence?” 765 785.
289 those who are affected by the criminal justice system. And secondly, that the reduction is not attributable to extraneous factors such as incapacitation.
3.3.3.3 EMPIRICAL TESTING OF THE MODEL
3.3.3.3.1 EMPIRICAL TESTING OF HYPOTHESIS ONE: AN INVERSE RELATIONSHIP BETWEEN THE OBJECTIVE PROPERTIES OF PUNISHMENT AND THE CRIME RATE.
It has been noted widely that during the 1990s there was a significant drop in the crime rate in the United States1390 and also in Canada.1391 American researchers firstly attributed this to an increase in the number of police officers, the rate of incarceration, a receding crack epidemic1392 and the legalization of abortion.1393 A statistical correlation between the number of police and a reduction in the crime rate was demonstrated. Most research concluded that increased policing, which represents an increase in the likelihood of detection, and hence a concomitant increase in the cost of offending, is a significant factor in reducing crime. Yet there have been contrary findings that demonstrate that the correlation is marginal.1394 Hence there has been qualified acceptance only because in Canada there was a decrease in the crime rate and a decrease in the number of police.1395 Thus, the correlation between increased policing and crime reduction may have been caused by external factors. Also increased policing in certain areas has led to crime displacement, that is, the criminals move from one place to another.
1390 Donohue and Levitt “The impact of Legalized Abortion on Crime” (2001) 116 2 Quarterly Journal of Economics 379. 1391 Dell, Sinclair and Boe “Adult Male Offenders in Canada: Recent Trends” (12-1998) Correctional Services Cananda Research Branch Corporate Development 290 In the United States of America a drop in crime rate has also been attributed to a substantial increase of custodial punishment.1396 Levitt attributes this decrease to the fact that incarceration is a severe legal penalty, and thus the cost of commission of offences is assumed to have increased but importantly also to incapacitation. There has been tentative acceptance that the increase in the level of incarceration was a partial cause of the decrease in the crime rate but the conclusion that deterrence forms part of the cause has not been widely accepted. The argument that deterrence is increased by an increase in severity of punishment has been widely rejected. The reasons for this include the fact that incarceration also increased dramatically in the 1980’s, but during that period crime significantly increased.1397 Furthermore, in Canada crime decreased in the 1990’s but the use of custodial sanctions also decreased.1398 The contribution of prison may be attributable to incapacitation, as opposed to deterrence or rehabilitation. There may have also been external factors causing a drop in crime, unrelated to either police presence or rate of incarceration. Later research has demonstrated that initially, in the United States of America, increased incarceration caused a decrease in crime. However, the continued expansion of incarceration ceases to have that effect and the correlation between incarceration and crime reduction ceases to be significant.1399 This has significant implications for South Africa which has Africa’s largest prison population and the ninth highest in the world.1400 Furthermore, when objectively sanctions have increased, there has not been a corresponding reduction in crime. A complete survey of the literature has demonstrated that there is no significant 1396 Levitt “Understanding why crime fell in the 1990s: Four factors that explain the decline and six that do not” 163 177. 1397 Clear “Backfire: When Incarceration Increases Crime” (1996) 3.2 Journal of the Oklahoma Criminal Justice Research Consortium 1. 1398 Bunge, Johnson and Baldé “Crime and Justice Research Paper Series: Exploring Crime Patterns in Canada” (06-2005) Canadian Centre for Justice Statistics and Time Series Research and Analysis Centre Statistics Canada 291 correlation between an increase in severity and a reduction in crime.1401 Mandatory minimum sentence legislation has been shown not to affect the crime rates that they are targeting.1402 The argument has also been put forward that capital punishment, which represents the greatest price of disutility of crime, not only fails to deter homicide but possibly increases its frequency because of brutalization.1403 Unlike celerity and certainty, severity has not been shown to reduce offending.1404 This may explain the effectiveness of increased policing. Again, caution is to be exercised, in that not all policing is effective. Only particular aggressive types of policing have been shown to be a deterrent.1405 Similarly, non-custodial sentences tend to reduce recidivism more effectively than custodial sentences. 1406This does not support the case for increased use of incarceration as a tool in the fight against crime. An increase in the prison population, due to greater vigilance on the part of the police and greater use of custodial sanctions, places a premium on the purpose of crime. For example, in the drug trade, the greater the number of arrests then the greater the risk in selling the product. This is turn increases the price and profit attached to the product being sold. This increased profit in turn attracts a greater number of participants into the crime. Thus ironically, in certain cases, greater prevention indirectly increases the general level of crime in society.1407 Furthermore, crime is largely an activity involving two groups. The first group is male youths who generally outgrow this pattern quickly. The second group is high rate 1401 Doob and Webster “Sentence Severity and Crime: Accepting the Null Hypothesis” (2003) Vol 30 Crime and Justice 143; Tonry “Learning from the Limitations of Deterrence Research” 279 285. 1402 Tonry “Learning from the Limitations of Deterrence Research” 279 286. 1403 Tonry “Learning from the Limitations of Deterrence Research” 279 283. 1404 Nagin and Pogarsky “Integrating Celerity, Impulsivity, and Extralegal Sanction Threats into a Model of General Deterrence: Theory and Evidence” 865; Pratt, Cullen, Blevins, Daigle and Madensen “The Emperical Status of Deterrence Theory” in Cullen, Wright and Belvin (eds), Wright (ed) and Blevins Taking Stock: The Status of Criminological Theory 367 379. 1405 Nagin “Deterrence and Incapacitation” in Tonry (ed) The Handbook of Crime and Punishment (1998) 345 359. 1406 Cid “Rates between Prison and Suspended Prison Sanctions Is Imprisonment Criminogenic?: A Comparative Study of Recidivism” (2009) 6 European Journal of Criminology 459. 1407 Nagin “Deterrence and Incapacitation” in Tonry (ed) The Handbook of Crime and Punishment 345 357. 292 offenders. High rate offenders are persons who are regular offenders regardless of age. When the youthful offenders, who are not high rate offenders, are imprisoned it potentially increases the risk of recidivism in that group. One reason for this phenomenon is labeling and stigmatization. Ex-prisoners’ chances of re-integration are reduced because of the stigma attached to their label. Their ability to participate in the mainstream economy is impaired and their options to earn a living are reduced. Since they already have a criminal record, they more easily turn to crime as a means of income.1408 A detailed discussion on labeling theory and stigmatization is beyond the scope of this research. Briefly, the theory postulates that when a person is convicted of a crime then he is labeled as a “criminal” by society. This label influences both the individual’s own behaviour, since he now perceives himself as a criminal, and it also influences the manner in which he is treated by others in society. This treatment may occur on many levels. It may occur in simple daily interactions when a “normal” person has difficulty relating to the “criminal” and vice versa. It also negatively influences the opportunities available to “criminals”. For example, their opportunities to find employment are more limited. They may find it difficult to rent a home because of a criminal record. Finance and insurance opportunities may become limited since many insurance companies are not prepared to enter into contracts of insurance with persons with certain types of convictions. Research has shown that contact with the criminal justice system can lead to a substantial reduction in economic opportunities.1409 Legislation limits the opportunities available to persons with certain types of convictions.1410 These various incidents over an extended period reinforce the identity of the criminal as a deviant. The “deviant” then embraces this identity and a career in crime becomes a self-fulfilling prophecy.1411 1408 Clear “Backfire: When Incarceration Increases Crime” (1996) 3 Journal of the Oklahoma Criminal Criminal Justice Research Consortium 7 12 < https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=175331> (accessed 11-03-2013). 1409 Pager “The Mark of a Criminal Record” (2003) Vol 108 No 5 American Journal of Sociology 937 938. 1410 For example, Companies Act 2008, s 69(8)(b)(iv) of Act 71 of 2008. 1411 Clinard and Meier Sociology of Deviant Behavior (2010) 89 90; Gill and Maynard “On ‘Labeling’ in Actual Interaction: Delivering and Receiving Diagnoses of Developmental Disabilities. Social Problems” (1995) Social Problems 11 12; Aday Aging Prisoners: Crisis in American Corrections (2003) 78. 293 There is furthermore no evidence to suggest that imprisonment is a specific deterrent (that is, prevents recidivism) or that longer sentences are any more effective than shorter sentences as a deterrent. Such evidence that exists suggests that longer prison terms increase the likelihood of recidivism.1412 There is an unforeseen consequence of imprisonment and rational choice theory, namely that those who have been to prison face numerous obstacles to re-integration such as for example, finding work, finding homes and participating in the modern economic system. They are also faced with reputational difficulties since they have a criminal record. Therefore they have an increased utility for committing crime and a decreased utility in not offending. For example, a conviction of fraud has been estimated to reduce the chances of finding work by 40%.1413 This then increases the likelihood of re-offending. This also illustrates the connection between formal and informal sanctions, that is, non-legal sanctions which carry a cost, such as stigmatization. However, as prison populations increase, the stigma’s effectiveness may be eroded because of the high number of person carrying the stigma.1414 The correlation between a decrease in the crime rate and a high level of incarceration may be attributable to one of two causes. The first possible cause is deterrence, that is, other potential offenders are deterred from committing crimes. The other possible cause is incapacitation, that is, all the likely offenders have been removed from society. This debate is as yet unresolved.1415 Importantly, it must be demonstrated that the objective increase in severity affects the actor’s perception of the increase in cost of offending. 1412 Drago, Galbiati and Vertova “Prison Conditions and Recidivism” (2011) 13(1) American Law and Economic Review (2011) 103. 1413 Nagin “Deterrence and Incapacitation” in Tonry (ed) The Handbook of Crime and Punishment 345 352. 1414 Nagin “Deterrence and Incapacitation” in Tonry (ed) The Handbook of Crime and Punishment 345 353. 1415 Tonry “Learning from the Limitations of Deterrence Research” 279 295. 294 3.3.3.3.2 EMPIRICAL TESTING OF HYPOTHESIS TWO: A POSITIVE RELATIONSHIP BETWEEN THE OBJECTIVE AND THE PERCEPTUAL PROPERTIES OF PUNISHMENT Deterrence is a perceptual theory in the sense that the would-be offender must believe that he will be penalized for his offence.1416 There is little evidence to support the notion that changes in any three of the cost components of disutility translate into an appreciation on the part of offenders’ or would be offenders’ perceptions of those changes.1417 Thus, criminals may not appreciate the risks of apprehension or of changes in the law regarding sanctions. Two important questions in this regard have been identified: firstly, whether offenders have well-informed offense specific risk sanction perceptions, that is, are offenders aware of the sanction for specific offenses, or do they merely have a generalized sense of the enforcement apparatus? Secondly, it must be determined how easily sanction risk offenses are manipulated. In other words do offenders update their general store of knowledge as new legislation or enforcement practices are introduced, and if so, how quickly and how accurately? And furthermore, what sources do they use?1418 In regard to the first question research has shown that individuals are generally not aware of what sanctions are attached to which offenses.1419 However, rational choice predicts that even if offenders are aware of the penalties for specific offenses then these offenses may be avoided. For example, if robberies with guns were suddenly given a much higher sanction, then robbers may replace this act with robberies with knives. The manner in which offenders perceive sanctions has been demonstrated to differ from the manner in which they are legislated. For example, an objective doubling of 1416 Doob and Webster “Sentence Severity and Crime: Accepting the Null Hypothesis” 143 173. 1417 Paternoster “How Much Do We Really Know About Criminal Deterrence?” 765 804. 1418 Nagin “Criminal Deterrence Research at the Outset of the Twenty-First Century” 19. 1419 Williams, Gibbs and Erickson “Public Knowledge of Statutory Penalties: The Extent and Basis of Accurate Perception” (1980) 23(1) Pacific Sociological Review 105; Von Hirsch, Bottoms, Burney and Wikstrom “Criminal Deterrence and Sentence Severity: An Analysis of Recent Research” (1999) The Institute of Criminology at Cambridge University study commissioned by the Home Office 295 severity, that is, a doubling of the period of incarceration, is perceived as a moderate increase in severity.1420 Research further indicates offenders’ perceptions of the cost of offending as fixed. In other words, conviction of a crime is the determining factor in deciding whether to offend and not how severe the punishment is.1421 The conclusion from this research is therefore that there is no empirical support for the assumptions that underlie minimum sentence legislation and severity of court sentences. One way of answering the second question referred to above is to ascertain whether an individual’s perceptions change based on experience. That is, will someone who is arrested increase their perception of risk of apprehension in the future - and vice versa for those who have escaped detection? Research has shown that the increase in perception of risk following arrest is not significant, depending on a number of variables such as age, history of offending and history of arrest.1422 Finally, perceptions of the cost of offending are not strongly related to the objective cost of offending.1423 This also leads to a further serious criticism of deterrence theory, namely, that even if perceptions are influenced by sanction, the mechanism does not appear to operate in the correct direction. In other words, perceptions are based largely upon experience and not upon changes in policy or practice. The criticism is not that individuals do not weigh perceived costs and benefits, but rather that those perceptions are not anchored in reality.1424 It has therefore been argued that the existing rational choice model is inadequate to capture the relationship between objective changes in costs of offending and the 1420 McClelland and Alpert “Factor Analysis Applied to Magnitude Estimates of Punishment Seriousness: Patterns of Individual Differences” (1985) 1 Journal of Quantitative Criminology 307. 1421 Nagin “Deterrence and Incapacitation” in Tonry (ed) The Handbook of Crime and Punishment 345 352. 1422 Anwar and Loughran “Testing A Bayesian Learning Theory Of Deterrence Among Serious Juvenile Offenders” (2011) 49.3 Criminology 667. 1423 Paternoster, Saltzman, Waldo and Chiricos “Perceived Risk and Social Control: Do Sanctions Really Deter?” (1983) Vol 17 No 3 Law & Society Review 457 http://www.jstor.org/stable/3053589> (accessed 08-03-2013). 1424 Nagin “Criminal Deterrence Research at the Outset of the Twenty-First Century” 1. 296 perception of those costs, given the low correlation between objective changes in risk and the perception of those changes.1425 3.3.3.3.3 EMPIRICAL TESTING OF HYPOTHESIS THREE: AN INVERSE RELATIONSHIP BETWEEN THE PERCEPTUAL PROPERTIES OF PUNISHMENT AND MEASURES OF CRIMINAL OFFENDING MUST BE DEMONSTRATED The question is whether an inverse relationship between the perceptual properties of punishment and measures of criminal offending can be demonstrated. The hypothesis to be tested is whether a person will offend if the expected benefit of offending is greater than the perceived cost of offending. This is represented as follows:1426 U(Benefits) > p U(Legal Costs + Extralegal Costs) Where: p represents the perceived risk of those sanctions occurring U(Benefits) represents the expected benefits from offending U(Legal Costs + Extralegal Costs) represents the expected costs of offending This hypothesis can be further modified as follows:1427 U(Benefits) > (δt) p U(Legal Costs + Extralegal Costs) Where: (δt) represents the individual’s discount rate, that is, the rate by which the individual reduces his valuation of those future costs over time. Not many studies have been conducted to test this part of the hypothesis. The conclusions that have been drawn are that perceived certainty of punishment does 1425 Piliavin, Gartner, Thornton and Matsueda “Crime, Deterrence and Rational Choice” (1986) American Sociological Review 101. 1426 Paternoster “How Much Do We Really Know About Criminal Deterrence?” 765 815. 1427 Nagin and Pogarsky “Integrating Celerity, Impulsivity, and Extralegal Sanction Threats into a Model of General Deterrence: Theory and Evidence” 865. 297 act as a moderate deterrent. However, perceptions about severity and celerity are not significantly correlated with deterrence.1428 The studies conducted to test this hypothesis do not offer much support for this aspect of deterrence theory. The studies are criticized for using students as their subjects and furthermore, the studies are laboratory-based, that is, they are not based on the behaviour of actual offenders in a potential criminal setting. The research that has been conducted thus employs university students, that is, not offenders, and the results are based on how the subjects say they would behave, as opposed to actual demonstrated behaviour.1429 Therefore, where rational choice theory does receive support is primarily in terms of certainty, i.e. effective aggressive policing has been shown to reduce crime, or, at the very least, displace it. However, severity of sanction, such as for example, longer sentences, has not been shown to reduce crime. Little is known about the immediacy of the sanction (celerity), and its impact on the crime rate.1430 Thus, the belief in the rationality of human beings best translates into criminal policy by using policing as a relatively effective means of influencing levels of crime in society by ensuring certainty. In conclusion, researchers in the field do not argue that the criminal justice system as a whole fails to have a general deterrent effect. In other words, it is not suggested that general deterrence is not a consequence of the operation of the criminal justice system as a whole. However, the precise mechanism through which this general deterrent effect is achieved has not yet been satisfactorily isolated. For example, the rational choice model does not have significant empirical support. The role of imprisonment, as opposed to policing or other types of punishment, is even more problematic in that the research all points towards it having a criminogenic, as opposed to a specific deterrent effect, and also not a significant general deterrent effect. 1428 Paternoster “How Much Do We Really Know About Criminal Deterrence?” 765 818. 1429 Tonry “Learning from the Limitations of Deterrence Research” 279 286. 1430 Paternoster “How Much Do We Really Know About Criminal Deterrence?” 765 815. 298 3.3.4 THE CORRECTIONAL SERVICES ACT The Correctional Services Act1431 does not mention deterrence, but locates the correctional system within the larger crime-fighting matrix of the state and records that its contribution towards the maintenance and protection of a just, peaceful and safe society is by enforcing the sentences of the courts. 3.4 REHABILITATION 3.4.1 JURISTS Individual prevention is concerned with preventing an individual who has already committed a criminal offence from committing a further criminal offence. These theories are largely based on beliefs about human nature. They postulate that by punishing an offender who has been convicted of the commission of a crime, the offender will not repeat the criminal behaviour in the future. The idea is that the offender in question should be prevented from repeating his criminal behaviour, whether the means of achieving this are via incapacitation, intimidation or reformation. However these theories only apply to offenders who have been apprehended, prosecuted and convicted.1432 General deterrence, as discussed above, is a theory of psychological coercion. A threat of punishment is made to society at large that should any individual violate the law he will be punished. When individual offenders are punished this comprises the implementation of the aforesaid threat. This, it is argued, gives credence to said threats and proves that the state is serious about implementing the law.1433In this context there are thus three relevant theories, namely incapacitation, specific deterrence and rehabilitation.1434 Incapacitation has been discussed above and specific deterrence and rehabilitation will be considered in this section. 1431 111 of 1998. 1432 Rabie Theories of Punishment 4. 1433 Andenaes “The General Preventive Effects of Punishment” 949 950. 1434 Andenaes “The General Preventive Effects of Punishment” 949. 299 Individual or specific deterrence postulates that when a person has been subjected to the pain of punishment this will condition him to refrain from offending in the future. The object of the punishment is therefore to teach the offender a lesson so that he will be deterred from repeating his offence.1435 1436 Gardiner , when discussing individual deterrence, recognizes the potentially criminogenic impact of punishment. He refers to an English Departmental Committee on Corporal Punishment which followed and analysed the careers of 440 men convicted of robbery with violence over a ten-year period. The committee reported that those who had been flogged were significantly more likely to re-offend than those who had not been flogged. Gardiner rejects the argument that these findings are attributable to the fact the recidivists were already hardened criminals because the findings held true even for those who were flogged as first offenders. He argues that this is attributable to the fact that reward is almost universally effective in controlling behaviour, whereas generally punishment has the opposite result of what is intended.1437 In contrast, Rabie notes the criticism which is often leveled against individual deterrence, that is, that offenders are converted to criminal careers in prison, on account of association with other criminals and the resultant creation of feelings of hatred, bitterness and revenge towards society. Whilst acknowledging this criticism, he argues that it relates to the nature of the punishment, that is, the nature of prisons, rather than the theory of specific deterrence.1438 Gardiner recognizes that individual deterrence is also based on a belief in the rationality of human beings, that is, that an individual, having received punishment for an offence, will not again repeat that conduct. However, he points out that human beings are not purely rational creatures. They are influenced by many other factors such as level of intelligence, ability to foresee consequences of actions, fear and 1435 Gardiner “The Purposes of Criminal Punishment” 117 121. 1436 Ibid. 1437 Ibid. 1438 Rabie Theories of Punishment 6-7. 300 greed.1439 Gardiner further argues that when deterrence does work it is not necessarily because of the punitive consequences. He notes that social disapprobation is a far more important consideration.1440 Furthermore he adds two very important observations. The first is that when Danish police were withdrawn from Germany in 1944 there was no effective police force in Germany. The impact of this was that property crimes increased in frequency but other crimes did not. These crimes were probably motivated, he argues, by food shortages in Germany at the time. The second follows from the first, namely, the reason why the average man does not commit murder is not because he fears capital punishment. Rather, his motivation for refraining is that to commit such a deed is utterly repellent to his moral feelings.1441 Rabie argues that rehabilitation is primarily concerned with the offender and not with society. The commission of the offence gives information about the offender’s personality and helps specialists identify the source of his deviance. This, in turn, enables the specialists to prescribe a treatment regime to change the offender into a law-abiding citizen.1442 These theories have also been identified as medical models of crime that conceive of criminal behaviour as being caused by a disease or disorder. This disorder can supposedly be treated by curing the patient’s disorder, using specialist medical techniques.1443 The rehabilitative ideal rests upon various assumptions. For example, it assumes that human behaviour has antecedent causes. It is therefore the obligation of scientists to discover and describe those causes. Employing this knowledge of the antecedents of human behaviour should then enable practitioners to modify human behaviour. Finally, using certain proven therapeutic procedures to treat offenders will effect changes in their behaviour. These changes are both in the interests of the 1439 Gardiner “The Purposes of Criminal Punishment” 117 122. 1440 Ibid. 1441 Gardiner “The Purposes of Criminal Punishment” 117 125. 1442 Rabie Theories of Punishment 7. 1443 Van Zyl Smit South African Prison Law and Practice 110. 301 offender’s own happiness and health and in the interests of society who will be protected against his re-offending.1444 3.4.2 THE COMMON LAW In South African law rehabilitation is considered to be either the most important component of punishment or one of the most important elements. In S v 1445 Makwanyane the court held that rehabilitation is a manifestation of the fundamental constitutional value of ubuntu. The court held that the death penalty rejects the possibility of rehabilitation of the convicted person and that for this reason, and others, it failed to pass constitutional muster.1446 The importance of ubuntu in punishment, which has as important components reconciliation and restoration,1447 has been generally accepted in our law.1448 The court also held that in interpreting legislation the court is permitted to consider the purpose and background to the legislation.1449 The Correctional Services Act, as amended, has as its primary purpose the rehabilitation of the offender.1450 Thus the importance of rehabilitation as a purpose of punishment has been confirmed in numerous decisions.1451 In S v Williams and Others the court held that South Africa should move away from punishments that place undue emphasis on retribution and vengeance, and rather embrace punishment that emphasizes correction, prevention and recognition of 1444 Allen “Criminal Justice, Legal Values and the Rehabilitative Ideal” (1959) Vol 50 Iss 3 Journal of Criminal Law and Criminology 226. 1445 S v Makwanyane supra. 1446 S v Makwanyane supra paras 241 and 260. 1447 Afri-Forum and Another v Malema and Others supra. 1448 S v Matiwane 2013 (1) SACR 507 (WCC). 1449 Par 13. 1450 White Paper On Corrections In South Africa (2005) 39. 1451 S v Tcoeib 1996 (7) BCLR 996 (NmS); Roman v Williams NO 1997 (9) BCLR 1267 (C); Namunjepo and Others Commanding Officer, Windhoek Prison and Another supra; S v Niemand supra; Anderson v S [1999] 1 All SA 1 (N); Woods and Another v Minister of Justice, Legal and Parliamentary Affairs and Others 1995 (1) SA 703 (Z); Conjwayo v Minister of Justice, Legal and Parliamentary Affairs and Others supra; S v Nkosi (1); S v Nkosi (2); S v Mchunu 1984 (4) 94 (T); S v Williams supra. 302 human rights.1452 The court held that this is the view embraced by the majority of jurisdictions worldwide. In S v Niemand1453 the court held that the purpose of section 65(4)(b)(iv) of the Criminal Procedure Act,1454 which provides that a habitual criminal must be detained for a period of at least 7 years without parole is not to protect society but in order for the offender to be rehabilitated. The acceptance by the courts of rehabilitation as an achievable object of punishment has not always been unqualified. In both Hassim and Another v Officer Commanding, Prison Command, Robben Island and Another and Venkatrathnam and Another v Officer Commanding, Prison Command, Robben Island and Another1455 the court held that rehabilitation is not the only aspect of punishment upon which the court should focus. It was held that there was a debate between two views. The first view is that prisons protect society most effectively by being operated primarily for custody and punishment. The second view is that prisons protect society most effectively by being operated for custody and rehabilitation. Furthermore, it was held that the two views, the punitive versus the rehabilitative theory, run counter to each other. It is up to prison authorities, who have training and expertise, to balance these two opposite goals and therefore the courts will not intervene lightly in the running of a prison.1456 In Goldberg v Minister of Prisons1457 the court held that imprisonment is primarily imposed as a punishment for criminal conduct and even though efforts should be made for reformation, this is in the nature of a counsel for perfection: in other words, it was seen as an unrealizable ideal. Similar reservations have been expressed by the South African Law Commission who have noted that South Africa is already a country with signally low rates of, inter 1452 648C – E. 1453 2001 (11) BCLR 1181 (CC). 1454 51 of 1977. 1455 1973 (3) SA 462 (C). 1456 476G – 477A. 1457 1979 (1) SA (14). 303 alia, rehabilitation.1458 This comment was one of several responses to the suggestion that a legislative offence be created in order to punish those who deliberately harm others by spreading HIV. The concern being raised was that imprisonment may not rehabilitate or discourage those who commit such acts from committing them in future. In another line of decisions, the South African courts have held that it is doubtful that rehabilitation via imprisonment works and have found little evidence of a link between length of sentence and likelihood of rehabilitation.1459 It has also been held that long sentences seriously damage potentially valuable human material.1460 On the other hand it has also been held that rehabilitation can be subordinated to the security needs of the prison.1461 The concept of ubuntu,1462 is wider than what was traditionally meant by rehabilitation. It includes the re-integration of the offender into the community: this notion is consistent with the tenor of the Correctional Services Act.1463 The German Federal Constitutional Court has held that the different purposes of punishment predominate at different stages of the legal criminal system. For example, general deterrence predominates at the legislative stage and retribution predominates at the sentencing stage of criminal proceedings: in addition it holds that special prevention, with an emphasis on re-socialisation, is the purpose of a prison sentence.1464 1458 SA Law Commission Fifth Interim Report on Aspects of The Law Relating To AIDS The Need For A Statutory Offence Aimed At Harmful HIV-Related Behaviour Project 85 Report (2001) 137. 1459 R v Karg supra; Reg v Sargeant [1974] 60 Cr App Rep 74; Windlesham “Life Sentences: The Paradox of Indeterminacy” (1989) Criminal LR 244 251; S v Nkwanyana and Others 1990 (4) SA 735 (A) 749C-D; S V Mungati 1992 (1) SACR 550 (A) 556 556H-I; R v Swanepoel supra 453-455; S v Nkambule 1993 (1) SACR 136 (A); S v Skenjana supra 54I-55A; Hiemstra and Kriegler “Suid-Afrikaanse Strafproses” 5th ed (1993) 663; S v Mhlakaza and Another (1997) 2 All SA 185 (A). 1460 S v Skenjana supra 54I-55E. 1461 Thukwane v Minister of Correctional Services and Others supra. 1462 Afri-Forum and Another v Malema and Others supra. 1463 111 of 1998, see definition of development. 1464 Steinberg “Prison Overcrowding and the Constitutional Right to Adequate Accommodation in South Africa” Institute for Security Studies (ISS) and Centre for the Study of Violence and Reconcilation (2004) http://www.csvr.org.za/docs/correctional/prisoncovercrowding.pdf 304 Re-socialisation has a wider ambit than the traditional idea of rehabilitation. It encompasses the life of the prisoner after release and includes post-release elements such as privacy, so that his record is protected, thus allowing him to function again within society.1465 Resocialisation, in Germany, whilst being in the in the public interest, is also a right enjoyed by the prisoner.1466 The German Courts have interpreted the German constitution, along with the attendant legislation, as giving the prisoner a right to rehabilitation. This becomes a yardstick by which to judge all infringements of the rights of prisoners. Two types of rights have been identified. The first is positive rights and the second is negative rights. Negative rights are those which restrict the ability of the state to invade the rights of prisoners, while positive rights place obligations upon the state to act.1467 The right to re-socialisation is based firstly on the right to dignity and the right to develop his personality freely and naturally. Secondly it is based upon the right of groups requiring the assistance of the state to be granted the aforesaid assistance.1468 It is submitted that this is a right of the prisoner in South Africa as well1469: it is also arguably a fundamental right.1470 Section 10 in the Constitution protects the right to (accessed 10-12-2010); Morgenstern “Judicial Rehabilitation in Germany – The Use of Criminal Records and the Removal of Recorded Convictions” (2011) European Journal of Probation 20; Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 78. 1465 Morgenstern “Judicial Rehabilitation in Germany – The Use of Criminal Records and the Removal of Recorded Convictions” 20. 1466 Kommers The Constitutional Jurisprudence of the Federal Republic of Germany 2nd ed (1997) 416. 1467 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 78. 1468 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 79. 1469 S 4(2) of the Correctional services Act specifically refers to rights of prisoners as contained in s 3 of the Correctional services Act. Section 16 of the Correctional services Act refers to the rights of corrections (rehabilitation) and development (re-socialisation) as contained elsewhere in the Act. The content of these two rights is then given substance in s 4 of the Correctional services Act. 1470 For example s 14 of the Constitution which guarantees the right to privacy. 305 dignity and section 9 the right to equality. Where prisoners are discriminated against, for example in the context of employment, it may be argued that they are protected by the provisions relating to social origin.1471 On the basis of the German Court’s reasoning, prisoners constitute a group who, after release, are discriminated against and therefore need assistance. This discrimination is based upon their social origin. Therefore the state owes them a positive duty to assist with their re-integration. This can be seen as consistent with the constitutional value of ubuntu. From the perspective of society there is also a significant interest in the outcome of these two goals of rehabilitation and re-socialisation, since there is a significant cost to recidivism: these costs include the costs of policing, of courts and prosecution and of custodial and non-custodial punishment. Moreover they include the cost to the family of the offender, such as loss of an imprisoned breadwinner and also the significant social costs to the offender who is sentenced to a correctional facility.1472 3.4.3 THE MEDICAL MODEL AND THE ASSESSMENT THEREOF As will be discussed in more detail below, rehabilitation1473 is a central facet of the Correctional Services Act.1474 This centrality is also apparent from section 2 as well as Chapter IV of the Act. Rehabilitation, as contemplated in the Act, is a medical type model. As discussed above the rehabilitative ideal rests upon various assumptions. It assumes that human behaviour has antecedent causes which scientists are obliged to identify and describe. Employing this knowledge of the antecedents of human behaviour then enables practitioners to modify human behaviour. Finally, using certain proven therapeutic procedures to treat offenders can effect changes in their behaviour. Rehabilitation should conceptually be distinguished from specific deterrence. In the case of rehabilitation the change aimed at in the individual is through intervention of a 1471 S 9(3). 1472 Cullen, Jonson and Nagin “Prisons Do Not Reduce Recidivism The High Cost of Ignoring Science” (2011) Vol 91 No 3 The Prison Journal 48. 1473 “Correction” means provision of services and programmes aimed at correcting the offending behaviour of sentenced offenders in order to rehabilitate them. 1474 111 of 1998. 306 “medical” nature thereby causing a psychological change which in turn changes behaviour.1475 However in the case of specific deterrence the change in behaviour is brought about by a fear of further punishment.1476 The measure of success of either approach remains the same, namely, the level of recidivism subsequent to treatment, via either rehabilitation or punishment, in the case of deterrence. Recidivism may be measured in various ways either by re-arrest, prosecution, conviction or re-incarceration. This may lead to various errors in that the sample may incorrectly include non-offenders or incorrectly exclude re-offenders.1477 Specific deterrence is premised on rational choice theory. This theory has been outlined above.1478 3.4.3.1 BRIEF HISTORY OF THE MEDICAL MODEL When rehabilitation is discussed in this context reference is being made to various interventions of professionals, e.g. psychologists, social workers, psychiatrists and the like, in a medical or quasi medical sense.1479 The success of these interventions is measured by assessing whether the programme has reduced the likelihood of recidivism. The figure normally quoted in studies is the average rate of recidivism across all types of crime. This can however, be misleading as the rate of recidivism is different for different types of crime. For example, even though the average level of recidivism for prisoners in the USA is 67%, it tends to be lower for offenders who committed homicide (40%) and rape (46%). It is very high for those who earn a living from crime, such as motor-vehicle 1475 Logan and Gaes “Meta-Analysis and the Rehabilitation of Punishment” (June 1993) 10 Justice Quarterly 245-263. 1476 Paternoster “How Much Do We Really Know About Criminal Deterrence?” 765. 1477 Blumstein and Larson “Problems in Modeling and Measuring Recidivism” (1971) 8 Journal of Research in Crime and Delinquency 124. 1478 Vida supra. 1479 Edwards “Rehabilitation Potential in Prison Inmates as Measured by the MMPI” (1963) Vol 54 No 2 The Journal of Criminal Law, Criminology, and Police Science 181; Visher and Travis “Transitions from Prison to Community: Understanding Individual Pathways” (2003) Vol 29 Annual Review of Sociology 89. 307 thieves (78%) and dealers in stolen property (74.6%). Therefore, many of these offenders resume their trade after a period of incarceration.1480 Historically the paradigm of reform or rehabilitation underlay the American and French prison systems from the 1800’s until around 1910.1481 However, in 1975 a significant meta-analysis of research into rehabilitation programmes in the United States was conducted by Martinson who concluded that rehabilitation in prisons did not work.1482 This became known as the “nothing works” view. Martinson subsequently attempted to retract the “nothing works” view. He argued that certain types of rehabilitation programmes may be effective but this attempt to retract his initial findings proved unsuccessful.1483 The “nothing works” view became the dominant view and was adopted into legislation in the United States of America. Hence in 1984 the Sentencing Reform Act1484 established an independent Sentencing Commission which was given certain guidelines by this Act. The Act was subsequently upheld by the United States Supreme Court in Mistretta v United States.1485 The court in Tapia v US1486 held that a court may not impose or lengthen a prison sentence to enable an offender to complete a treatment programme or otherwise to promote rehabilitation. The court therefore accepted the rehabilitation model as outmoded: it was thus seen as an unobtainable goal with regard to imprisonment. The general consensus, given the very high rates of recidivism, is therefore that nothing works. There are however two important factors that mitigate against the 1480 Langan and Levin “Recidivism of Prisoners Released in 1994” Office of Justice Programs Bureau of Justice Statistics 8 308 abandonment of rehabilitation. The first is the values of the society in question and the second is the very high cost of recidivism to society.1487 The “nothing works” view remained dominant until the 1990s. Thereafter research emerged which contradicted the initial views of Martinson and confirmed that certain types of rehabilitation programmes may be effective.1488 In 1997 the United States Congress commissioned a study in order to assess the outcome of research and practices in the field of prisoner rehabilitation.1489 This peer review study surveyed the results of over 500 programmes and practices in order to ascertain what was effective in crime prevention. Part of their research looked at recidivism: their finding was that certain interventions were more effective than others. 3.4.3.2 CURRENT THEORETICAL MODEL AND EMPIRICAL EVALUATION THEREOF Research in the field of effective rehabilitation techniques has employed a technique called “meta-analyisis”, that is, an analysis of the research in a particular field. The research regarding prisoner rehabilitation has shown that, with the correct therapy, the recidivism rate is on average 10 percentage points lower for treatment groups than for the control groups.1490 Moreover the research has further demonstrated that certain types of intervention are effective whereas other types of intervention have no effect. Those which have been shown to have no effect are punishment-oriented programmes. On the other hand the types of intervention that produce the greatest reductions in recidivism use cognitive-behavioural treatments which target known 1487 Cullen and Gendreau “Assessing Correctional Rehabilitation: Policy, Practices, and Prospects” in Homrey: Washington D.C. U.S. Department of Justice, National Institute of Justice (ed) Criminal Justice 2000: Policies, Processes, and Decisions of the Criminal Justice System (2000) Vol 3. 1488 Cullen and Gendreau “Assessing Correctional Rehabilitation: Policy, Practice, and Prospects” 2000 National Criminal Justice reference System 309 predictors of crime and intervene mainly with high-risk offenders. The effectiveness has been shown achieve reductions in recidivism of up to 25%.1491 The current approach that has dominated the literature is that of the psychologists Andrews, Bonta and Hoge.1492 They propose the following principles as a basis for the development of programmes and interventions: the first is termed the Risk Principle. This means that those offenders who are likely to re-offend should be treated more intensively than low-risk offenders who may need no intervention. Furthermore, there are two known predictors of crime. The first category refers to the “static” predictors of crime such as an offender’s criminal history, which cannot be changed. The second category is “dynamic” predictors of crime, such as antisocial values and these predictors can be changed. It is therefore this second category that must be treated.1493 The second principle is termed the Needs Principle. This divides needs into two categories, i.e. criminogenic and non-criminogenic needs or factors. The former includes employment status and substance abuse. Non-criminogenic needs refers to factors that are not predictive of crimes, for example low self-esteem. It is concluded that only the criminogenic factors, that is, those that predict the likelihood of offending, should be addressed. These interventions should be behavioural in nature because, in general, such interventions are effective in changing an array of human behaviours.1494 The third principle is “Responsivity”: this dictates that offenders must participate in programmes to which they are responsive and that will increase the effectiveness of the treatment. Research has indicated that this includes, amongst others: conducting 1491 Cullen and Gendreau 310 interventions in the community as opposed to a prison setting; ensuring that the programme uses well-trained staff; follow-up after the intervention, including structured relapse prevention or “aftercare” and matching styles of treatment or intervention to the learning styles of offenders.1495 The fourth principle is that of Professional Discretion. This means that the staff who administer the programme should recognize when special circumstances require special treatment. For example, a sex offender may have a low risk of recidivating based on his score in the relevant test. However, if that offender is a teacher this requires that this special risk be taken into account.1496 A fifth principle has been proposed, namely that of Programme Integrity. This implies that the programme must be properly structured and planned, delivered by trained personnel and be of an adequate length.1497 An example of the type of intervention advocated by Andrews, Bonta and Hoge is known as Multi Systems Theory which does not view the individual merely from an intra-psychic view. That is, it does not merely require a change in the individual’s psychological state. The individual is viewed as being involved in multiple systems, including the family, peer groups, school, and community. Interventions thus any change must involve all these systems to be effective. Secondly, Multi Systems Theory requires multiple professionals overseeing individual offenders and these professionals are to have a relatively light caseload (50 cases per year). Thirdly, these professionals must have a full support system and take personal responsibility for failures in their treatment.1498 1495 Cullen and Gendreau 311 What is apparent from the above is that each treatment or intervention must be adapted to the individual in question. In other words, the therapy must be specifically tailored to the needs of the individual offender. This is an intensive and costly process. Institutions that are unable to deliver that level of service are similarly unlikely to deliver rehabilitative results. From this follows the next point, namely, the criminogenic nature of overcrowded correctional facilities. Here there is also research and authority that indicates what treatment or interventions are not effective. Prior to turning to the research the matter of Plata v Schwarzenegger1499 will first be considered where 1500 a complaint, which was a representative action, was filed based upon constitutional violations in the delivery of medical care to prisoners in California state prisons. The plaintiffs asserted that the unconstitutional conditions of detention were caused by defendants’ failure to properly care for and treat the prisoners in their custody. This caused widespread harm, including severe and unnecessary pain, injury and death. The specific deficiencies were identified by the court. These included the following: inadequate medical screening of incoming prisoners; delays in or failure to provide access to medical care, including specialist care; untimely responses to medical emergencies; the interference of custodial staff with provision of medical care; the failure to recruit and retain sufficient numbers of competent medical staff; disorganized and incomplete medical records; a lack of quality control procedures, including lack of physician peer review, quality assurance and death reviews; a lack of protocols to deal with chronic illnesses, including diabetes, heart disease, hepatitis, and HIV. There was also the failure of the administrative grievance system to provide timely or adequate responses to complaints concerning medical care. It was argued that these systemic deficiencies were of such a nature that the system as a whole violated the Eighth Amendment of the constitution of the United States of America and was therefore to be deemed unconstitutional.1501 1499 Plata v Schwarzenegger docket no. 3:01-cv-01351-TEH (N.D. Cal.), (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2-03-2013). 1500 Ibid. 1501 Pg 9. 312 The court upheld the complaint which had a long history and imposed a population cap. The decision was taken on appeal to the United States Supreme Court1502 which confirmed the decision. The court a quo, accepted, and relied heavily upon, the expert testimony1503 of psychology Professor Craig Haney.1504 The important aspects of the testimony that can be highlighted are that overcrowded prisons have been found to be criminogenic.1505 The effects of overcrowding include the following: lack of basic resources such as blankets and beds; an increase in acts of violence between prisoners and between prisoners and staff; an increase in facility maintenance expenses and increased medical and mental health problems among prisoners.1506 Overcrowding is also seen to undermine the quality of medical and mental health care in prison1507 and causes or contributes to many health problems in prison, including communicable diseases and mental health problems.1508 Other studies1509 have found that prison overcrowding can lead to: a significantly worse quality of institutional life; elevated blood pressure (systolic and diastolic); a greater number of prisoner complaints; possible physical and psychological 1502 Edmund and Brown Jr Governor of California, Et Al Appellants v Marciano Plata Et Al. 563 U. S. (2011). 1503 Haney “Summary of Expert Testimony” < http://rbgg.com/wp- content/uploads/_Haney,%20Dr.%20Craig%20%283201%29,%2010-30-08,%20OCR.PDF> (accessed 01-03-2013). 1504 Haney “Summary of Expert Testimony” < http://rbgg.com/wp- content/uploads/_Haney,%20Dr.%20Craig%20%283201%29,%2010-30-08,%20OCR.PDF> (accessed 01-03-2013) 56, 61, 62, 64, 65, 69, 70, 72, 76, 82, 83, 86, 91, 104, 116, 117, 124, 125, 129, 130, 136. 1505 Haney “Summary of Expert Testimony” < http://rbgg.com/wp- content/uploads/_Haney,%20Dr.%20Craig%20%283201%29,%2010-30-08,%20OCR.PDF> (accessed 01-03-2013) 40. 1506 Haney “Summary of Expert Testimony” < http://rbgg.com/wp- content/uploads/_Haney,%20Dr.%20Craig%20%283201%29,%2010-30-08,%20OCR.PDF> (accessed 01-03-2013) 129; Kindade and Semond “The Consequences of Jail Crowding” (1995) 41 Crime & Delinquency 150. 1507 Walmsley “Prison Health Care and the Extent of Prison Overcrowding” 9. 1508 World Health Organisation Europe Health in Prisons “A WHO Guide to Essentials in Prison Health” http://www.euro.who.int/__data/assets/pdf_file/0009/99018/E90174.pdf (01-03-2013). 1509 Haney “The Wages of Prison Overcrowding: Harmful Psychological Consequences and Dysfunctional Correctional Reactions” (2006) 22 Washington University Journal of Law & Policy 265. 313 impairment and a higher rate of disciplinary infraction (related to the restrictions on personal space).1510 Furthermore, the above studies have also demonstrated that overcrowding negatively affects mental and physical health by increasing the level of uncertainty with which prisoners must cope. This is caused by increasing the number of social interactions to which prisoners are exposed. Further consequences of overcrowding include high levels of uncertainty; goal interference; a significantly increased cognitive load; an increased probability of interpersonal conflict and assaults; higher levels of prisoner rape; a significantly higher likelihood of suicide1511 and in some cases post-traumatic stress disorder. In addition overcrowding can involve a smaller likelihood of treatment for mental health problems which in turn increases emotional, cognitive and psychological problems. There is similarly less likelihood of treatment of special needs prisoners and failure to identify or properly classify mental health disorders - or even if classified, an inability to respond to special needs prisoners.1512 The above research also shows an increased likelihood of assaults among younger prisoners, heightened aggression amongst prisoners resulting in greater punitive approach by staff and a lessened likelihood of the prisoners participating in training programmes. Since prisoners are not properly categorized, high and low risk offenders are imprisoned together. This has a criminogenic impact on the low risk offenders.1513 A further implication is that often massive force and violence are deployed by staff to keep control of prisoners. Moreover harsh prison conditions as measured by isolation and levels of overcrowding have been shown to significantly 1510 Megargee “The Association of Population Density, Reduced Space and Uncomfortable Temperature with Misconduct in a Prison Community” (1977) 5 American Journal of Community Psychology 289 295. 1511 Ciuhodaru “Factors Increasing Mortality Rates in Suicide Attempts in Jail and Prison” (2009) 17.1 Romanian Journal Legal Medicine 69-72. 1512 DiCataldo “Screening Prison Inmates for Mental Disorder: An Examination of the Relationship Between Mental Disorder and Prison Adjustment” (1995) 23 The Bulletin of the American Academy of Psychiatry and the Law 573 574. 1513 Bonta and Motiuk “The Diversion of Incarcerated Offenders to Correctional Halfway Houses” (1987) 24 Journal of Research in Crime and Delinquency 302 312. 314 increase recidivism,1514 a finding confirmed by the Plata matter.1515 Thus, overcrowding has many negative effects but in this context, as the research demonstrates, it is criminogenic, that is, it significantly increases the risk of recidivism. Further research on what does not work in the field of rehabilitation indicates that custodial sentences have been demonstrated to have a greater criminogenic effect than non-custodial sentences.1516 There is therefore a strong correlation between poor conditions of incarceration and recidivism. The correlation between poor conditions of detention and criminogenesis is not disputed.1517 Reasons for this correlation have been suggested and can be placed in three broad categories, viz the experience of incarceration; post incarceration consequences and third party effects. The experience of incarceration would include exposure to other offenders, i.e. a “school of crime” scenario;1518 severance of ties with the community and family1519 and brutalizing effects of prison.1520 Post-incarceration consequences include labeling,1521 diminished employment prospects1522 and denial of benefits.1523 Third 1514 Chen and Shapiro “Do Harsher Prison Conditions Reduce Recidivism? A Discontinuity-Based Approach” (2007) 9 American Law and Economics Review 1; Drago, Galbiati and Vertova “Prison Conditions and Recidivism” 103. 1515 Plata v Schwarzenegger docket no. 3:01-cv-01351-TEH (N.D. Cal.), (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2-03-2013) 9. 1516 Cullen, Jonson and Nagin “Prisons do not Reduce Recidivism: The High Cost of Ignoring Science” 48S; Cid “Is Imprisonment Criminogenic?: A Comparative Study of Recidivism Rates between Prison and Suspended Prison Sanctions” 2009 (6) European Journal of Criminology 459. 1517 Farrington and Nutall “Prison Size, Overcrowding, Prison Violence, and Recidivism” (1980) 8 Journal of Criminal Justice 221. 1518 Taylor “Growing up Behind Bars: Confinement, Youth Development and Crime” (1996) 3 Journal of the Oklahoma Criminal Justice Research Consortium 29. The school of crime theory argues that offenders learn from older or more experienced prisoners how to commit crimes and avoid detection. The theory also posits that in addition to acquiring the technical know-how of criminality the offender also internalizes the norms of the prison’s antisocial subculture. 1519 Maldonado “Recidivism and Paternal Engagement” (2006) 40 Family Law Quarterly 191. 1520 Braithwaite “Restorative Justice: Assessing Optimistic and Pessimistic Accounts” (1999) Crime and Justice 1. This argument proposes that violence against a prisoner destroy his sense of personhood. He also learns to resent the state and its systems of authority as well as the system that failed to protect him from violence by other prisoners. Either, or both of the aforementioned psychological mechanisms aggravate the prisoner’s sense of belonging outside of society, and reduce his willingness or ability to conform to its norms. The violence to which the prisoner is exposed also hardens the prisoner. This makes prisoners more hostile, violent, and socially maladjusted when he is released. 1521 Moran “Prisoner Reintegration and the Stigma of Prison Time Inscribed on the Body” (2012) Vol 14 No 5 Punishment & Society 564. 315 party effects include exposure effects, that is, the deterrent effect of prisons is reduced where offenders or would be offenders survive or know of the survival of a person who has served a prison term;1524 effects on families of offenders such as a loss of income and various psychological and behavioural problems for the children.1525 A final approach to be considered in relation to rehabilitation is the theory that increasing the pain and / or surveillance of offenders will reduce the likelihood of their re-offending. This theory is based on the “common sense” understanding of human behaviour. This approach has been tested in the United States of America through “get tough” approaches which include, for example, longer rather than shorter prison terms; “scared straight” programmes; intensive supervision programmes and “boot camps”.1526 The studies conducted on programmes of this nature have consistently shown that they increase recidivism.1527 3.4.3.3 SPECIFIC DETERRENCE, REHABILITATION AND RECIDIVISM As discussed above one of the purposes of punishment is to deter offenders from re- offending. The primary tool with which to measure the effectiveness of a correctional system in achieving the goals of specific deterrence and/or rehabilitation is to assess the statistics on recidivism. A high rate of recidivism implies that the correctional system is not effective in achieving the goal of rehabilitation and a low rate indicates the opposite. 1522 Visher, Debus-Sherrill and Yahner “Employment After Prison: A Longitudinal Study of Former Prisoners” (2011) Vol 28 Iss 5 Justice Quarterly 698. 1523 Eg s 69(8)(a) Companies Act 71 of 2008. 1524 Hagan and Dinovitzer “Collateral Consequences of Imprisonment for Children, Communities, and Prisoners” 121 146. 1525 Fritsch and Burkhead “Behavioral Reactions of Children to Parental Absence Due to Imprisonment” (1981) Vol 30 Iss1 Family Relations 83. 1526 Boot camps are programs that are based on shock programmes grounded in military techniques. 1527 Cullen and Gendreau 316 These assessments have been done extensively in the USA, which has the highest rate of incarceration in the world.1528 The studies employ four measures of recidivism: re-arrest, re-conviction, re-sentence to prison, and return to prison with or without a new sentence.1529 Three main studies have been conducted in the USA, using the above four criteria as indicators, and the conclusions are substantially the same, namely that the rate of recidivism is a little under 70 %1530 within the first three years of release. . These findings are substantially similar to those in other western countries where similar studies have been conducted. For example, in the Netherlands1531 and in England1532 the figures are substantially similar to those in the USA. In New Zealand the rate of recidivism is 52% (although for recidivists emerging from a second term in prison it is approximately 63%)1533 and in Spain it is 73%.1534 In South Africa there are no definite statistics but the indications are that it is unacceptably high: an 1528 ICPS "Entire world - Prison Population Totals" International Centre for Prison Studies, a partner, of the University of Essex 317 estimate is 70% or even higher.1535 Recidivism has therefore been labeled the revolving door of crime.1536 According to a meta-analysis of 3000 studies held worldwide of the relative effects of custodial versus non-custodial sanctions, the experience of incarceration has a null or mildly criminogenic impact on future criminal involvement. However, it demonstrated that there is no support for the argument that imprisonment has strong specific deterrent effects.1537 In another study employing meta-analysis1538 of English research from a variety of countries, the following three questions were asked: • When an offender is sentenced to a custodial sanction as opposed to being given a non-custodial sanction does this make the offender less likely to re- offend? • Do longer sentences make offenders less likely to re-offend compared to shorter sentences? • Are harsher prison conditions associated with less recidivism than are less harsh conditions? The questions were asked with the intention of dealing with the two competing perspectives, namely, the specific deterrent argument and the alternative argument, i.e. that prisons constitute a criminogenic environment. 1535 Hesselink-Louw “Criminological Assessment of Prison Inmates: A Constructive Mechanism Towards Offender Rehabilitation” DPhil thesis UNISA (2004); Draft White Paper on Corrections (2003) par 6.2.6; Executive Summary of the 2009 – 2010 Public Attitudes towards Crime, Punishment and Rehabilitation Survey, National Institute for Crime Prevention and the Reintegration of Offenders, NICRO 2010; Jules-Macquet “Executive Summary of the 2009-2010 Public Attitudes towards Crime, Punishment and Rehabilitation” (2009) NICRO Executive Summary of 2009 Public Attitudes towards Crime Research Report 318 The research concluded firstly, that there was a significant relationship between a custodial sanction and recidivism, with the former corresponding to an increase in the latter. The second conclusion was that harsher conditions were associated with a significant increase in recidivism when compared to less harsh conditions. Thirdly, shorter as opposed to longer sentences were associated with a very slight reduction in recidivism. These findings again do not support the argument that prisons are a specific deterrent. As pointed out above, USA studies show a very poor track record for rehabilitation, with most showing that incarceration has little or no effect on rehabilitation.1539 Various other studies come to a similar conclusion.1540 The Solicitor General of Canada has concluded that criminal justice policies based on the belief that imprisonment will reduce recidivism are without empirical support. He further concludes that imprisonment should be used for purposes other than a reduction of re-offences. For example, prison can be employed for the incapacitation of 1539 Beck and Shipley “Recidivism of Prisoners Released in 1983” (1989) Bureau of Justice Statistics, U.S. Department of Justice, April 1 The reconviction rate is 47% 319 dangerous offenders.1541 Not surprisingly prisons have become known as schools of crime, that is, they increase the likelihood of recidivism.1542 However this does not imply that there are no programmes that are rehabilitative. The content of these programmes has been discussed in the preceding section.1543 However, the incarceration of prisoners in overcrowded conditions significantly increases the likelihood recidivism. This effect is labeled iatrogenic or the criminogenic effect of incarceration. This has been outlined above when dealing with the outcomes of Brown v Plata.1544 Of great importance in this context is that the criminogenic impact of incarceration is increased by poor conditions of detention. Thus, the primary purpose of incarceration namely, maintaining and protecting a just, peaceful and safe society is frustrated when the conditions of detention1545 are not consistent with human dignity. The offender will then not be re-integrated into society1546 as contemplated by the Correctional Services Act.1547 It furthermore means that offenders will be fed back into the system, thereby compounding the overcrowding. The criminogenic effect of prisons have a number of negative consequences for society: these include firstly, an increasing cost of incarceration as recidivists are cycled through the revolving doors of crime. Secondly, overcrowded prisons lead to an increase in early-release programmes.1548 Thirdly, criminogenic effects of 1541 Smith, Goggin and Gendreau “The Effects of Prison Sentences and Intermediate Sanctions on Recidivism: General Effects and Individual Differences” (2002) Vol 7 No 3 Public Safety Canada for Solicitor General of Canada < http://www.ccoso.org/library%20articles/200201_Gendreau_e.pdf> (accessed 12-03-2013). 1542 Gendreau, Goggin and Cullen “The Effects of Prison Sentences on Recidivism” Centre for Criminal Justice Studies, University of New Brunswick, and Francis T. Cullen, Department of Criminal Justice, University of Cincinnati 320 overcrowded prisons, combined with early-release programmes, leads firstly, to an increase in the level of crime in the prisons themselves and secondly an increase in the general level of crime in society upon the release of offenders. Finally, since prisons are known to be centres for the transmission of infectious diseases, these releases constitute a serious public health hazard.1549 The aforesaid considerations were important elements in the population cap order confirmed in the Plata matter.1550 The underlying assumption upon which the courts and the legislature traditionally have acted is that the greater the cost, or punishment, associated with the commission of a crime the less likely it is that that crime will be committed.1551 Therefore, correctional policy which is based on this view assumes that the longer the period of incarceration, and the harsher the conditions of imprisonment, the less likely it is that the crime will be committed. For the reasons specified above, this view can be rejected. 3.4.4 CORRECTIONAL SERVICES ACT Corrections, that is rehabilitation,1552 is central to the Correctional Services Act.1553 This can be inferred from the statement of purpose in section 2 which seeks to promote the social responsibility and human development of all sentenced offenders. Here development is defined as the provision of services and programmes aimed at honing and enhancing competencies and skills that will enable the sentenced offender to re-integrate into the community. Statements, 27 April 2012 321 This notion is further amplified in Chapter IV of the Act dealing with sentenced offenders: this asserts in section 36 that the deprivation of liberty serves the purposes of punishment and that a sentence of incarceration has the objective of enabling the offender to lead a socially responsible and crime-free life in the future. Sections 37 and 38 of the Correctional Services Act then provide for the creation of a programme that can realize these goals of rehabilitation and re-integration. This interpretation of the Correctional Services Act1554 is supported by the White Paper on Corrections in South Africa (2005) that forms the basis of the extensive 2008 amendments1555 to the Act: here the primary purpose of punishment in South Africa is seen as rehabilitation.1556 4. CONCLUSION The conditions of detention of prisoners constitute limitations on the rights of prisoners which may be subordinated to the legitimate goals of punishment. However the principles of legitimacy and proportionality apply to any limitation of prisoner rights. The goals of punishment are retribution, deterrence, prevention and rehabilitation. Proportionality implies firstly that the measures adopted must be carefully designed so as to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Even so, the limitation should impair, as little as possible, the right or freedom in question. Finally, there must be proportionality between the measures which are responsible for limiting the right or freedom (in this case, incarceration), and the objective which has been identified as of sufficient importance (in this case, the four purposes of punishment) 1554 Ibid. 1555 Act No 25 of 2008. 1556 White Paper on Corrections in South Africa (2005) 39. 322 The first goal of punishment that was considered was prevention. It was submitted that under the heading of prevention it was useful only to discuss the concept of incapacitation which however was not a significant goal of punishment. It was furthermore argued that prisons do not incapacitate offenders. Arguably they concentrate offenders in prisons. Prisons then become places where crime is commonplace. Furthermore, with economic offences new offenders tend to replace incarcerated offenders: therefore levels of crime are not reduced. Retribution, it was argued, insofar as it is equated with vengeance, is also not an important goal of imprisonment. However, insofar as it represents the element of justice, it has some importance. Retribution protects the offender because it seeks to ensure that those who have committed the same offence are subjected to the same amount of suffering and are not treated arbitrarily. This raises the question whether a prisoner who is exposed to substantially greater suffering than a prisoner should be, either by way of incidental treatment, for example, assaults, or those intentionally exposed to greater suffering, for example, those incarcerated in super maximum facilities, are entitled to a reduction in sentence or to some compensation for this additional suffering. Retribution is supported by constitutional protections against arbitrariness and the protection of equality. Research indicated that general deterrence relies upon the theory of rational choice, that is, that offenders will choose to offend if the perceived potential benefits of offending outweigh the perceived potential costs of offending. Three hypotheses were proposed to test this theory. Firstly, an inverse relationship between the objective properties of punishment and the crime rate must be demonstrated. Secondly, a positive relationship between the objective and perceptual properties of punishment must be demonstrated. Finally, an inverse relationship between the perceptual properties of punishment and measures of criminal offending must be demonstrated. The research findings which attempt to ascertain whether changes in the crime rate are due to changes in crime prevention policy are equivocal in their support of the three aforesaid hypotheses. They tend to indicate that greater certainty, that is policing, is effective in reducing crime. However findings regarding celerity are 323 equivocal whereas those regarding severity of punishment indicate an inverse relationship to crime rates. In other words, more severe punishments increase the likelihood of recidivism. Rehabilitation was found to be possible provided certain structured programmes were employed. These were very specialized and individualized and required intensive professional supervision. In the studies regarding the roles of punishment it was found that prisons either did not reduce recidivism or that they increased the likelihood of recidivism. No studies were found indicating that prisons reduce the likelihood of recidivism. Research demonstrated that non-custodial sanctions are more effective in reducing the likelihood of recidivism than non-custodial sanctions. Certain conditions of detention were found to clearly promote recidivism. These included longer and harsher prison terms, as well as conditions in overcrowded institutions. Reasons for this phenomenon include the experience of incarceration, post incarceration consequences and third party effects. Furthermore research also indicated that rational choice theory predicted that the effects of labeling and stigmatization explained the greater tendency of ex-prisoners to recidivate. Thus, it can be concluded that if prison conditions in South Africa are criminogenic then this has three important consequences: first, the conditions of detention might not be constitutionally defensible.; second, imprisonment as a “type of punishment” may be declared unconstitutional and third, this may imply that the reductionist / abolitionist policy will inform court judgements or alternatively, it may lead to the abolition of rehabilitation as a goal of punishment. In order to further pursue this aspect of the research it is necessary to consider the conditions of detention in South African prisons so as to determine whether or not these conditions are criminogenic. 324 CHAPTER 6 SYSTEMIC PROBLEMS AND THEIR IMPLICATIONS 1. Introduction ...... 325 2. Lack of medical staff and facilities ...... 328 2.1 Jali report ...... 329 2.2 Prison and health care in High Court cases ...... 333 2.3 Annual reports of the inspecting judge ...... 334 3. Prison overcrowding ...... 338 3.1 Jali report ...... 339 3.2 High Court cases...... 342 3.3 Annual reports of the inspecting judge ...... 345 4. Prison gangs ...... 353 4.1 Origins ...... 354 4.2 Etiology ...... 356 4.3 Sexuality in prison and the gang system ...... 358 5. Prison staff ...... 371 5.1 Staff violence ...... 373 5.1.1 Staff on staff violence ...... 373 5.1.2 Staff on prisoner violence ...... 374 5.2 Staff corruption ...... 379 6. Rehabilitation programmes ...... 385 7. Conclusion ...... 391 1. INTRODUCTION In this chapter the current conditions in South African prisons will be explored and evaluated. The sources relied upon will as far as possible be official government sources such as the Jali Report, the annual reports of the inspecting judge and reported cases. One of the systemic issues that has been identified is that of gang activities in prison. Where necessary research other than from official sources will be employed for the purposes of studying gang activities. In order to explore and evaluate the conditions in South African prisons it is useful to approach the research from the perspective of the systemic problems that have been identified by the inspecting judge. These are prevalent in most prisons.1557 These problems do not occur in isolation, but compound each other as illustrated by the 1557 Judicial inspectorate of prisons "Annual Report for the period 1 April 2006 to 31 March 2007" (31-03-2007) Judicial Inspectorate for Correctional Services 325 diagram which appears immediately below. This diagram was created by the office of the inspecting judge.1558 Another systemic problem but which does not appear in the diagram is that of corruption. The reason for this is that the office of the inspecting judge was initially tasked with investigating corruption. This task was subsequently removed.1559 However, the inspecting judge has again been tasked with reporting upon corrupt activities within South African prisons.1560 How effective he will be in this task remains to be seen, given the fear of retaliation by prison staff which has been expressed by the inspecting judge’s staff.1561 The current inspecting judge is Vuka Eliakim Maswazi Tshabalala who was Judge President of Natal for ten years from October 2000 until February 2010. 1558 Judicial inspectorate of prisons "Annual Report for the period 1 April 2006 to 31 March 2007" (31-03-2007) Judicial Inspectorate for Correctional Services 326 The following have been identified as systemic problems by the inspecting judge, namely, shortage of staff, lack of medical staff and facilities, prison overcrowding, inadequate staff development, HIV/AIDS, infrastructure and maintenance problems, gangsterism, requests for prisoner transfers, ineffectiveness of parole boards, prisoner transfers, staff development needs, excessive focus on security, lack of rehabilitation and vocational training programmes and assaults.1562 Only those that are the more serious of the systemic problems will be considered here. Furthermore, because of its very serious nature, the issue of staff corruption will also be examined. The purpose of the above diagram is to illustrate the interaction of the various systemic problems. As will be noted, each component, or problem, has an associated label. The label indicates firstly, the number of other components that feed into, or are part causes of it, and secondly, the number of components which that component exacerbates. The inspecting judge has identified overcrowding as 1562 Judicial inspectorate of prisons "Annual Report for the period 1 April 2006 to 31 March 2007" (31-03-2007) Judicial Inspectorate for Correctional Services 327 the primary driver of the other components. This is consistent with the observations made elsewhere in this thesis. The problems to be considered in this research are lack of medical staff and facilities, prison overcrowding, prison gangs, prison staff and the lack of rehabilitation programmes. Prison overcrowding was chosen as a topic because of its central importance in causing a violation of prisoner rights. Gangs and prison staff were chosen because these are often sources of corruption and violence. These introduce a large component of arbitrariness into the sentence of imprisonment and as such would be an important consideration in any debate about the constitutionality of imprisonment as a “type” of punishment”. Lack of medical staff and facilities were chosen since those have featured prominently in South African case law and because of the serious nature of their long term impact upon prisoners. For example, a prison rape which causes HIV has a long term impact on the prisoner which extends beyond the prison sentence. Finally the importance of rehabilitation is that it has an important function in any “section 36” analysis of prisoner rights. 2. LACK OF MEDICAL STAFF AND FACILITIES The legal position is that everyone, including prisoners, has the right to adequate health care and access to health services, regardless of legal status.1563 Prisoners have a right to adequate medical care, both physical and mental. This is to be of at least the same quality and standards of those available to non-prisoners. In some instances prisoners are entitled to medical care superior to that provided by the state to non-prisoners.1564 1563 Universal Declaration of Human Rights Art 25; Basic Principles for the Treatment of Prisoners Art 9; EPR Rule 39; South Africa, Correctional Services Act s 12; South Africa, Correctional Services Regulations s 7; Canada, Corrections And Conditional Release Act s 86; South African Constitution s 35. 1564 Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Principle 1; Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Code of 328 Every prison shall have the services of at least one qualified medical officer who should have some knowledge of psychiatry. Moreover the medical services should include a psychiatric service for the diagnosis and treatment of states of mental abnormality.1565 As soon as possible after a prisoner’s admission and whenever necessary thereafter, the medical officer shall examine every prisoner in order to discover any physical or mental illness and to take the necessary measures, including but not limited to, the segregation of prisoners suspected of having an infectious or contagious condition. The medical officer is also required to determine the prisoner’s capacity for work.1566 The medical officer shall regularly inspect and advise the head of the prison regarding the conditions of detention. The head of the prison shall take into consideration the reports and advice of the medical officer and if he agrees with those reports, he shall take immediate steps to give effect to any recommendations made.1567 Any physical or mental illnesses or defects which may hamper a prisoner's rehabilitation are to be detected and treated.1568 2.1 JALI REPORT The Jali Report 1569 noted certain problems associated with prison health care. Conduct for Law Enforcement Officials Art 6; EPR Rule 40; South Africa, Correctional Services Regulations s 7. 1565 UNSMR Art 22; EPR Rule 40. 1566 UNSMR Art 24 and Art 25; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment Principle 24; EPR Rule 42. 1567 UNSMR Art 26; South Africa, Correctional Services Regulations s 7. 1568 UNSMR Art 62 EPR Rule 44. 1569 Commission of Inquiry into Alleged Incidents of Corruption, Maladministration, Violence or Intimidation into the Department of Correctional Services Appointed by Order of the President of the Republic of South Africa in Terms of Proclamation No 135 of 2001, as amended. Hereinafter referred to as the “Jali Report”. 329 Medical personnel, relying on the expertise they have through their training, make certain recommendations about prisoners, which warders often ignore or override, irrespective of whether the medical doctor is a general practitioner, a district surgeon or a specialist.1570 Prisoners are coerced into treating fellow prisoners medically even when they have no medical training at all. This includes injecting fellow prisoners, cleaning and caring for HIV patients and dispensing medication to prisoners. On occasion prisoners dispense medication for staff. In at least one case a prisoner administering medication had no training and so he would simply dispense whatever medication he had on his trolley at his own discretion.1571 Medical responses have been known to be almost non-existent in cases of violence and prisoner rape. The responses have sometimes been labeled as callously indifferent. In the case of a prisoner, referred to in the Jali Report, who was anally raped by another prisoner the nurse only wrote down the details of the incident. The nurse did not take any swabs or perform any tests. She also never considered treating him as the victim of sexual assault, nor did she offer support or counseling. He was also not referred to hospital for observation. Nothing was done to assist him at all. When a doctor finally examined the prisoner the examination lasted eight seconds and he only noted that it was a serious anal injury. No HIV tests were carried out despite knowing that rape of this nature carried with it a significant probability of transmission of HIV, nor was any ARV medication prescribed.1572 The Jali reports notes that warders have considerable power because they are able to refuse to report the complaint made to them. Furthermore they have the power to control access to medical and psychological services. This renders the prisoners extremely vulnerable and dependent on warders. This was illustrated in a number of incidents testified about before Jali.1573 1570 Jali Report 22. 1571 Jali Report 332, 938, Chapter 33 393. 1572 Jali Report 406. 1573 Jali Report 433. 330 Jali reported that warders are in control of the prisoners’ lives and often abuse that power. Examples of this occur when they ignore recommendations of medical practitioners and experts without any reason.1574 Jali reported that this demonstrated that the officials of the Department, who are in control of the prisoners’ lives, abuse their power in that without any basis for doing so they ignore the recommendations of medical practitioners and expert opinion. Another example of this abuse of power was the refusal of medical parole, without any basis whatsoever, despite numerous expert reports that the prisoner should be released on medical parole.1575 An example of this refusal of medical parole was that of a Mr du Plooy who was terminally ill and had only two to three months to live. He required hospice assistance which the prisons could not provide. Jali reported that he should have been released on medical parole but was kept in prison for no apparent reason. Prison officials who were not medically qualified to make the necessary assessments were making the necessary decisions but they did not accept the advice of medical personnel.1576 Medical reports and recommendations are also ignored in other contexts. For example, warders who assault prisoners are often not disciplined, nor prosecuted, despite medical reports detailing the nature of the injuries suffered. There is tension between health care professionals and the uniformed members of the DCS, because the reports and recommendations made by the health care professionals are ignored. Furthermore the uniformed members of the DCS dictate to the health care professionals how to discharge their responsibilities. In addition, and fuelling this tension, health care professionals are sidelined for promotion because their work is not understood, nor is it considered important in the prison environment. This happens despite clear departmental recommendations to the contrary.1577 1574 Jali Report 521. 1575 Jali Report 524. 1576 Ibid. 1577 Ibid. 331 Incidental to prison health issues, there have been cases where an imprisoned inyanga1578 was permitted to conduct business from prison, and to keep his traditional medicines at the prison in a storeroom to which he had keys, so as to have easy access. He furthermore conducted business with both members of the public and members of the prison staff, with whom he consulted widely and from whom he received extensive support.1579 Poor management of health care services has led to massive losses being incurred by the DCS. For example, the Pietermaritzburg Prison Hospital was substantially renovated at a cost of about R5 million and equipped at a further cost of R1.5 million. The new facility contained one hundred and twenty beds, but had not been used since its opening several years before. The reasons cited were that the nursing staff had effectively stopped working because several of the nurses were sick while four were not at work at all. The impact of this was that a significant number of warders were being used to escort prisoners to external hospitals when they needed medical treatment. Additional warders would be necessary to guard the prisoners at the external hospital. The cost implication of this was substantial: for example, one prisoner stayed in hospital for eleven months because he required a knee operation which cost the DCS R168 908.00.1580 The health care management problems include poor staff training, or absence of training in procedures and protocol, including admissions protocol. For example, it was noted that there was no health plan for Pollsmoor Prison. Press coverage of this led to the Minister establishing a task team who made recommendations which were ignored by the Correctional Services Head Office. The failure to examine prisoners upon admission caused infectious diseases to spread throughout the prison. These staff problems meant that only emergencies were attended to and that there was no preventative care. This cost the State about ten times more per patient because curative care was so expensive.1581 1578 Traditional healer. 1579 Jali report Chapter 32 197. 1580 Jali Report Chapter 33 285; The Jali report was published in 2005 but the date of this operation is not specified. 1581 Jali Report Chapter 33 341. 332 Further to this, the ruling of the Constitutional Court in Lee v Minister of Correctional Services,1582 also arising from this prison and these conditions, has resulted in almost unlimited liability on the part of the state.1583 As a general rule there were significant medical staff shortages of all types including nursing, medical and educational staff.1584 2.2 PRISON AND HEALTH CARE IN HIGH COURT CASES Decisions of the courts also illustrate the health problems encountered in prison. In Minister of Correctional Services v Lee1585 the Supreme Court of Appeals found that prison authorities failed to take reasonable measures to prevent the contraction of tuberculosis by a prisoner in custody. However, the court rejected his claim because it was held that he had failed to prove that the negligence of the state had caused him to contract tuberculosis. The plaintiff was arrested in November 1999 and remained in prison for a total period of four years, before being acquitted and released in September 2004. The court held that South Africa has a high incidence of tuberculosis and it has been estimated that more than half the South African population has been infected by the organism at one time or another. It further found that prisons, being dank and poorly ventilated, provide an ideal environment for the transmission of the disease, whilst providing living conditions where there is close contact with those who have the active disease. The prisoners’ immune systems are often compromised by poor nutrition or other causes. The effective management of tuberculosis is relatively straightforward. There must be screening and diagnosis to detect the disease, isolation of a carrier for so long as he or she is infectious, and antibiotic treatment, generally for about six months. But such a management regime will be effective only if it is adhered to strictly and consistently, which requires adequate support staff. 1582 2013 (2) SA 144 (CC). 1583 Vida infra. 1584 Jali Report Chapter 33 334. 1585 2012 (3) SA 617 (SCA). 333 The authorities at Pollsmoor prison were pertinently aware of the risk to prisoners of contracting tuberculosis: yet from about 1998 there was a gradual and continuing breakdown of healthcare in the prison, including the management of tuberculosis, largely as a result of insufficient qualified health-care personnel. This is despite pleas by health care professionals for intervention and correction. These pleas were repeated to the inspecting judge, to prison authorities and even a parliamentary portfolio committee. Nothing came of these pleas other than the dismissal of one of the healthcare professionals who was pleading for intervention. The court found that there was not a proper TB management system in place and that the plaintiff had contracted TB during his stay in the correctional facility.1586 In the matter of EN and Others v Government of RSA and Others1587 and in B and Others v Minister of Correctional Services and Others1588 it was necessary for the applicants to go to court in order to compel the prison authorities to provide proper medical care. In Van Biljon and Others v Minister of Correctional Services and Others1589 the DCS was found to have failed to properly counsel a prisoner when testing for HIV/AIDS and had to pay damages to the plaintiff. 2.3 ANNUAL REPORTS OF THE INSPECTING JUDGE In his 2007/20081590 annual report the inspecting judge noted that there were a number of systemic problems in prisons. These included chronic prison 1586 In the Supreme Court of Appeals the court found that even though these poor conditions of detention existed the plaintiff had failed to prove that it, even if a proper TB management system was in place, he would not have contracted the disease. The Constitutional Court reversed that decision. 1587 2007 (1) BCLR 84 (D). 1588 1997 (6) BCLR 789 (C). 1589 1997 (4) SA 441 (C). 1590 Judicial inspectorate of prisons "Annual Report for the period 1 April 2007 to 31 March 2008" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013). 334 overcrowding, lack of rehabilitation programmes, inadequate medical treatment, prison gangs and corruption.1591 He noted that these problems were highly interconnected and that the solutions lay with a variety of government departments.1592 When interviewed, the Heads of Prisons indicated that the principal problems faced by them included poor medical services to prisoners; prison gangs; low staff morale; lack of rehabilitation programmes; poor maintenance by Public Works Departments and inadequate access to anti-retro viral medication for HIV positive prisoners.1593 In his 2008/20091594 annual report the inspecting judge noted most complaints received from prisoners related to a lack of contact with their families, followed by complaints regarding transfers and inadequate medical treatment.1595 Medical parole was a serious problem and as an illustration of the problem the inspecting judge sampled 269 death reports received during early 2009. He found that in 86% of the cases the DCS was aware of the problem as they had dispensed medical treatment. Medical parole was only considered in 14% of the cases, but in none of the cases was it granted.1596 In 2008 987 deaths were recorded in the 1591 Judicial inspectorate of prisons "Annual Report for the period 1 April 2007 to 31 March 2008" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013) 6. 1592 Judicial inspectorate of prisons "Annual Report for the period 1 April 2007 to 31 March 2008" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013) 5. 1593 Judicial inspectorate of prisons "Annual Report for the period 1 April 2007 to 31 March 2008" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013) 16. 1594 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013). 1595 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 13. 1596 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 24. 335 prisons and only 54 prisoners were granted medical parole. Therefore only 5.5% of the terminally ill were released.1597 Although medical parole was considered in 36 (14%) of these cases, the prisoners in question were not granted medical parole prior to their passing away. From this it may be inferred that medical parole is not considered in the majority of cases where prisoners are terminally ill. The inspecting judge again expressed his concern about health care and noted that the prison environment provides ideal conditions for the rapid spread of contagious diseases such as TB, HIV/AIDS and the H1N1 flu virus. It is for this reason that the highest levels of medical care and treatment should be provided. Despite this knowledge, new admissions are often not properly screened for diseases or for chronic medical conditions. Other prisoners are thus often infected with the disease in question and prisoners are then given access to medical treatment only after they have fallen seriously ill.1598 In his 2009/20101599 annual report the inspecting judge noted that the DCS’s medical record keeping was sub-standard and did not comply with the relevant reporting requirements, such as reporting the underlying causes of prisoner deaths.1600 There is also non-adherence to prison medical protocol. For example, there is a generally poor level of compliance with the requirement that prisoners detained in solitary confinement have their health assessed by a registered nurse, psychologist or correctional medical practitioner at least once a day. There is also general non- compliance with the requirement that when the period of segregation is extended it 1597 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 25. 1598 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 37. 1599 Judicial inspectorate of prisons "Annual Report for the period 1 April 2009 to 31 March 2010" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013). 1600 Judicial inspectorate of prisons "Annual Report for the period 1 April 2009 to 31 March 2010" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 27. 336 requires certification by a correctional medical practitioner or psychologist certifying that such extension would not be harmful to the health of the prisoner.1601 The absence of adequate medical treatment can be seen in the records of deaths in the inspecting judge’s report. For example, a prisoner who was assaulted by warders received no medical treatment and died1602; a prisoner who was brutally assaulted by warders using batons, electric shields, booted feet and then finally smothered was not provided with adequate and timeous medical attention and died1603; a suicide victim was not provided with either emergency nursing assistance at a time when it was available nor was he assessed psychologically before being placed in segregation, as required by law.1604 In his 2010/20111605 annual report the inspecting judge noted that there was a failure to adhere to the policy of subjecting transferred prisoners to full medical examination.1606 There is inadequate provision of psychological health services1607 and general access to health services and medication remains a serious problem.1608 1601 Judicial inspectorate of prisons "Annual Report for the period 1 April 2009 to 31 March 2010" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 32. 1602 Judicial inspectorate of prisons "Annual Report for the period 1 April 2009 to 31 March 2010" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 63. 1603 Ibid. 1604 Judicial inspectorate of prisons "Annual Report for the period 1 April 2009 to 31 March 2010" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 70. 1605 Judicial inspectorate of prisons "Annual Report for the period 1 April 2010 to 31 March 2011" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013). 1606 Judicial inspectorate of prisons "Annual Report for the period 1 April 2010 to 31 March 2011" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 21. 1607 Judicial inspectorate of prisons "Annual Report for the period 1 April 2010 to 31 March 2011" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 35. 1608 Judicial inspectorate of prisons "Annual Report for the period 1 April 2010 to 31 March 2011" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 36. 337 Again the failure of staff to provide treatment for a prisoner known to be prone to self- harm led to suicide.1609 In his 2011/20121610 annual report the inspecting judge noted that overcrowding caused staff shortages, including shortages in the medical, social and educational fields. As a result prisoners are not properly assessed on admission and only receive treatment and services after a significant time in detention, and then only if they specifically request it.1611 3. PRISON OVERCROWDING The legal position is that where sleeping accommodation is provided in individual cells or rooms, each prisoner shall occupy a cell or room by himself at night. An exception is made for temporary overcrowding, but it remains undesirable for two persons to share a cell.1612 Where sleeping accommodation is in dormitories, they shall be occupied by prisoners carefully selected as being suitable to associate with one another in those conditions and there shall be regular supervision at night.1613 All accommodation provided for the use of prisoners and in particular all sleeping accommodation, shall meet all health requirements, due regard being paid to climatic 1609 Judicial inspectorate of prisons "Annual Report for the period 1 April 2010 to 31 March 2011" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 66. 1610 Judicial inspectorate of prisons "Annual Report for the period 1 April 2011 to 31 March 2012" Judicial Inspectorate for Correctional Services 338 conditions and particularly to cubic content of air and minimum floor space, as well as adequate lighting, heating and ventilation.1614 In all places where prisoners are required to live or work, the windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air, whether or not there is artificial ventilation. Where artificial light is necessary, it shall be provided and it shall be sufficient for the prisoners to read or work without injury to eyesight.1615 The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner. Adequate bathing and shower installations shall be provided, so that every prisoner may be enabled and required to have a bath or shower, at a temperature suitable to the climate. The right to shower or bath is to be exercised as frequently as necessary for general hygiene, according to season and geographical region, but should be made available at least once a week in a temperate climate.1616 3.1 JALI REPORT The Department of Correctional Services has demonstrated that the issue of overcrowding is a problem caused by the entire Justice Crime Prevention and Security Cluster. Overcrowding of prisons is not caused solely by the prison system and its inability to respond to the large number of prisoners. The prison system receives people from a variety of sources and detains them in accordance with existing laws. Other causes of overcrowding include actions of the prosecuting authorities, the courts, the South African Police Services, the sentencing laws, 1614 UNSMR Art 10; EPR Rule 18; Malawi, Prisons Bill s 7; Malawi, Prisons Regulations s 3; Canada, Corrections And Conditional Release Act s 70; Canada, Corrections And Conditional Release Regulations s 70; United Kingdom Prison Act 1952 s 14; Germany, Prison Act s 144, 145 and 146; South Africa, Correctional Services Act s 7; South Africa, Correctional Services Regulations s 3. 1615 UNSMR Art 11; Malawi, Prisons Bill s 7; Malawi, Prisons Regulations s 3; Canada, Corrections And Conditional Release Act s 70; Canada, Corrections And Conditional Release Regulations s 70; United Kingdom Prison Act 1952 s 14; South Africa, Correctional Services Act s 7; South Africa, Correctional Services Regulations s 3. 1616 UNSMR Art 12 and Art 13; Malawi, Prisons Bill s 7; Malawi, Prisons Regulations s 3; Canada, Corrections And Conditional Release Act s 70; Canada, Corrections And Conditional Release Regulations s 70; United Kingdom Prison Act 1952 s 14. 339 including minimum sentencing laws, and the bail laws that make it more difficult for offenders charged with certain types of offence to obtain bail.1617 Overcrowding is also caused by the incompetence of the management of the Department of Correctional Services: for example, many positions that should be occupied by professionals are reserved for members who are unqualified to perform the functions for which they are appointed. Some of the officials lack the capacity to understand simple management concepts and do not grasp the consequences of failing to implement these concepts: moreover they fail to plan for future contingencies.1618 Overcrowding, combined with staff corruption and gang activities, have rendered certain prisons in South Africa unmanageable.1619 In certain of the prisons overcrowding has caused deterioration of management and an increase in gang related activities. The result is that the gangs have de facto management of the prison. Rehabilitation programmes then become very difficult to implement.1620 Male rape in prisons is a widespread phenomenon. Men who are raped in prison generally keep silent regarding their experiences. Fear of reprisals from warders and gang members contributes to the silence of male these rape victims.1621 Overcrowding is the greatest challenge currently faced by the Department of Correctional Services in that it undermines efforts to comply with international standards and the standards laid down in the Correctional Services Act.1622 These standards pertain to separation of categories of prisoners, humane detention, provision of basic needs, provision of comprehensive primary health care, rehabilitation of offenders and safe custody.1623 1617 Jali Report 626. 1618 Jali Report 629. 1619 Jali Report 31. 1620 Jali Report 142, 171. 1621 Jali Report 88. 1622 111 of 1998. 1623 Jali Report 131. 340 Overcrowding exacerbates problems related to gangsterism which causes staff morale to drop and stress levels to increase. Increased stress levels lead to high absenteeism which in turn means fewer staff to attend to prisoners’ needs.1624 In the view of both Jali and the inspecting judge, the current conditions in South African prisons, caused by overcrowding, are such that prisoners learn about crime in prison. The prisoners are not rehabilitated in prison and this consequently causes more crime in society.1625 In order for prison to have any beneficial effect in society it would be necessary to address the problem of overcrowding.1626 Overcrowding has numerous consequences. For example, visitation, which is necessary for successful re-integration and rehabilitation, cannot be properly accommodated.1627 Some prisoners are already HIV positive upon entering prison and this causes the disease to spread further among the rest of the prison population. The symptoms and vulnerabilities caused by the disease are exacerbated by overcrowding, stress and malnutrition.1628 The factors that contribute to the spread of the disease include sexual assaults, high-risk sexual encounters, same sex intercourse, tattooing and the use of contaminated instruments. These factors that contribute to the spread of the disease are themselves often symptoms of overcrowding. This in turn affects prison conditions to the point that they become inhumane and therefore unconstitutional.1629 Overcrowding, corruption and gangs are the primary causes of sexual violence in prison which carries with it the significant probability of contraction of HIV.1630 These problems contribute to sexual violence in various ways, including the participation of prison warders in the buying and selling of sex slaves in order to augment their income.1631 Moreover overcrowding leads to high-risk behaviour and increases the 1624 Jali Report 179, 395; At the time of the Jali report the ten most overcrowded prisons in South Africa were overcrowded by 285% to 386%. 1625 Jali Report 180. 1626 Ibid. 1627 Jali Report 375. 1628 Jali Report 430. 1629 Ibid. 1630 Jali Report 431. 1631 Jali Report 433. 341 scarcity of simple items, such as blankets and shoes. This results in these items being used as currency that can be exchanged for sexual favours.1632 Overcrowding places significant strain on the aging infrastructure of the prison, which is often unable to cope with the strain placed on it by a significantly higher number of users than that for which it was built. This can be illustrated by the filthy cells that prisoners are kept in and toilets and showers that are not in proper working order.1633 For example, one toilet is sometimes shared by approximately sixty prisoners: moreover prisoners have to share beds, sometimes two prisoners per bed, whilst others sleep on the concrete floor and sometimes have to share one blanket.1634 The Jali report suggests various ways to reduce the overcrowding, including amnesties,1635 increased use of parole and correctional supervision.1636 The Jali report further suggests that what is needed are primarily policies that require the Justice Crime Prevention and Security Cluster to view prison accommodation as a scarce resource and therefore, to use it as a last resort, and preferably to use other forms of punishment where possible.1637 There are no proposals offered in the Jali Report regarding oversight of these policies. It may be that in certain instances, as argued above, the only means for ensuring that policies are implemented would be the appointment of special masters.1638 3.2 HIGH COURT CASES In S v M1639 the court found that correctional supervision, when applied to those who are likely to respond positively to its regimen, can serve to protect society, without the destructive impact that incarceration can have on a convicted criminal’s innocent 1632 Ibid. 1633 Jali Report 625. 1634 Jali Report 630. 1635 Jali Report 632. 1636 Jali Report 640 – 641. 1637 Jali Report 638. 1638 Vida supra. 1639 2007 (2) SACR 539 (CC). 342 family members: furthermore such supervision creates a greater chance for rehabilitation than do South Africa’s overcrowded prisons.1640 The court also noted that South African prisons are suffering from overcrowding and that conditions may fall short of the minimum constitutional requirements.1641 In S v Lebuku1642 the use of non-custodial sentences to assist in reducing overcrowding in our prisons is discussed and the courts are encouraged to explore all available sentencing options and to attempt to find an alternative that is best suited to the crime instead of imprisonment.1643 In S v Brophy1644 the court was concerned about time spent in prison as an awaiting trial prisoner: it held that this is, at the very least, equivalent to time served without remission. Moreover awaiting trial prisoners have a harsher time because they cannot participate in the programmes that a prison may run: in addition they cannot earn any privileges for good conduct. Judicial cognisance should also be taken of the gross overcrowding in prisons housing awaiting-trial prisoners. These conditions the court held are equivalent to double or treble time served. This position was confirmed in S v Vilikazi1645 where the court confirmed that it is a recognised “rule of thumb” that imprisonment while awaiting trial is the equivalent of a sentence of twice that length. In Lee v Minister of Correctional Services1646 the court considered the conditions at Pollsmoor prison in some detail. It was found that the Provincial Commissioner had been reporting to the relevant Portfolio Committee that there was a critical shortage of nursing personnel. This left the remaining staff having to cope with an enormous workload under difficult conditions. Furthermore, it was found that overcrowding increased the pressure on the remaining nursing staff, which in turn exacerbated the 1640 Par 61. 1641 Ibid. 1642 2007 JOL 17622 (T) 13-15. 1643 Also see S v Siebert 1998 (1) SACR 554 (A) 539c-d; S v Cele (M1950/2012) 2013 ZAKZPHC 7 (5 February 2013) < http://www.saflii.org/za/cases/ZAKZPHC/2013/7.html > (accessed 30-04- 2013). 1644 2007 (2) SACR 56 (W). 1645 2000 (1) SACR 140 (W). 1646 2011 (6) SA 564 (WCC). 343 poor conditions in which prisoners were detained.1647 The court noted that issues such as gross overcrowding, gang-related behaviour and the ineffectiveness of the correctional services’ hierarchy had led to a decline in the number of nursing and security staff.1648 In the maximum security section of the prison the court found that the average overcrowding in 2003 was around 234% to 236%. The overcrowding led to the easy spread of TB: the more people kept in a cell, the greater the possibility that the bacteria that were coughed up would infect other prisoners. The conditions were found to be dingy and squalid and could be described as dehumanizing.1649 Up to 4 prisoners were detained in a single cell, that is a cell designed for one person, and the prisoners had to take turns to sleep1650: this problem had persisted despite numerous pleas from the doctor at the prison that the situation be addressed.1651 In addition to the increased likelihood of contracting the disease because of the sheer number of prisoners in one cell, the overcrowding further increased prisoners’ susceptibility because persons in an overcrowded environment get less rest and are more pressurized with the result that their immune systems are compromised1652. Further overcrowding made it difficult for security staff and for nursing staff to get into the cells to check on prisoners and to administer medication. The environment was almost devoid of light and fresh air. Conditions of this nature were found to be conducive to the spread of tuberculosis. The air in the cells was virtually unbreathable as a result of the smoking habits of prisoners, which included smoking the short ends of cigarettes.1653 The smoking habit also encouraged coughing which was regarded as “normal” in these circumstances.1654 The court found that the chances of a TB infection occurring in overcrowded communal cells were very good compared to those in a cell which was not overcrowded.1655 1647 Lee v Minister of Correctional Services 2011 (6) SA 564 (WCC) par 59.3. 1648 Lee v Minister of Correctional Services 2011 supra par 76 1649 Lee v Minister of Correctional Services 2011 supra par 78. 1650 Lee v Minister of Correctional Services 2011 supra par 265. 1651 Lee v Minister of Correctional Services 2011 supra paras 81, 113. 1652 Lee v Minister of Correctional Services 2011 supra par 87.1. 1653 Ibid. 1654 Lee v Minister of Correctional Services 2011 supra par 122. 1655 Lee v Minister of Correctional Services 2011 supra par 174. 344 Further, because of the massive overcrowding, the proper protocols regarding the isolation of tuberculosis patients who were in the infectious stage of the disease could not be followed.1656 Proper treatment and prevention required that infectious TB patients be isolated. This was not possible due to the overcrowding and attendant lack of suitable accommodation.1657 As noted above the cells in which the plaintiffs were kept were not properly ventilated for a great part of the day and there was inadequate sunlight. Cross-ventilation was absent after lock-down. The severely overcrowded conditions also meant that there were insufficient staff to look after prisoners and as a result they were confined to those cells for 23 hours per day.1658 The transmission of TB in the prison was therefore significantly increased by overcrowding, a lack of free flowing air, inadequate screening of incoming prisoners,1659 a failure to apply the proper systems in the administration of the necessary TB medication and also a severe shortage of nurses.1660 The primary cause of infection was therefore the detention of plaintiffs in extremely overcrowded and poorly ventilated cells.1661 3.3 ANNUAL REPORTS OF THE INSPECTING JUDGE In his 2007/20081662 annual report the inspecting judge noted that overcrowding was the cause of most of the problems faced in the prison system: this overcrowding resulted in inhumane conditions of detention.1663 1656 Lee v Minister of Correctional Services 2011 supra par 192. 1657 Lee v Minister of Correctional Services 2011 supra par 225. 1658 Lee v Minister of Correctional Services 2011 supra par 239. 1659 Lee v Minister of Correctional Services 2011 supra par 240. 1660 Lee v Minister of Correctional Services 2011 supra par 222. 1661 Lee v Minister of Correctional Services 2011 supra par 264. 1662 Judicial inspectorate of prisons "Annual Report for the period 1 April 2007 to 31 March 2008" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013). 1663 Judicial inspectorate of prisons "Annual Report for the period 1 April 2007 to 31 March 2008" Judicial Inspectorate for Correctional Services < 345 Linked to the problem of prison overcrowding is the condition of infrastructure1664 with certain prisons not equipped with enough beds. The one result of this is that prisoners have to sleep on the floors.1665 The impact of overcrowding upon prison rehabilitation programmes manifests in various ways. These include insufficient staff and resources to implement the rehabilitation programmes as well as the use of training areas for accommodation instead of for the presentation of programmes.1666Moreover, due to overcrowding, prisoners often eat their meals in overcrowded cells with no separation between sleeping areas and toilet areas.1667 Overcrowding, staff shortages, lack of rehabilitation programmes and lack of adequate health care therefore remain the most serious and widespread problems in South African prisons.1668 The overwhelming majority of prisons remain overcrowded with an average overcrowding figure of 145% with 67 prisons between 150 and 200% overcrowded and 17 prisons that are overcrowded at levels of 200% - 430%.1669 Of particular concern to the inspecting judge was that the number of prisoners sentenced to long prison terms increased significantly, with 68% of all sentenced http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013) 6. 1664 Ibid. 1665 Judicial inspectorate of prisons "Annual Report for the period 1 April 2007 to 31 March 2008" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013) 10. 1666 Judicial inspectorate of prisons "Annual Report for the period 1 April 2007 to 31 March 2008" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013) 12. 1667 Judicial inspectorate of prisons "Annual Report for the period 1 April 2007 to 31 March 2008" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013) 13. 1668 Judicial inspectorate of prisons "Annual Report for the period 1 April 2007 to 31 March 2008" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013) 15, 20. 1669 Judicial inspectorate of prisons "Annual Report for the period 1 April 2007 to 31 March 2008" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013) 21. 346 prisoners serving a sentence of more than 5 years and a total of 7 574 prisoners serving sentences of life imprisonment.1670 In his 2008/20091671 annual report the inspecting judge noted that a substantial number of the prisons were significantly overcrowded, inasmuch as the prisons are obliged to accept, clothe, feed and accommodate the persons directed there by the courts, regardless of their numbers.1672 He was of the view that the situation needed to be addressed urgently.1673 Of particular concern was the overcrowding caused by increasingly long sentences. The number of prisoners serving a sentence of life imprisonment increased from 1998 until 2009 by 1023%.1674 The average overcrowding levels in South African prisons as at 31 March 2009 was 144%. There were 107 prisons where the levels of overcrowding were between 100% and 150%, 62 prisons were overcrowded at levels of 150% to 200% and 19 prisons were overcrowded at more than 200%.1675 The inspecting judge was of the view that conditions for prisoners in prisons overcrowded by 200% and more were not consistent with human dignity.1676 1670 Judicial inspectorate of prisons "Annual Report for the period 1 April 2007 to 31 March 2008" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013) 23. 1671 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013). 1672 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 8. 1673 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 8. 1674 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 12. 1675 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 16. 1676 Ibid. 347 The diagram below illustrates the number of prisons and their level of crowding. Percentage of Crowding 120 100 80 60 Number of Prisons 40 20 0 less than 100 % between 100% between 150% greater than and 150% and 200% 200% Some of the effects of overcrowding that were noted by the inspecting judge included the extending of infrastructure beyond capacity, with kitchens, hospitals and water reticulation extended substantially beyond capacity. There was a negative impact on staff morale which resulted in absenteeism and the like. There were no rehabilitation programmes and extremely limited recreational or work opportunities in these institutions.1677 Of greater concern was the finding that the substantial majority of prisoners spend up to 23 hours per day in their cells with limited toilet and ablution facilities and in generally unhygienic conditions.1678 The causes of the problem of overcrowding are not primarily the responsibility of the Department of Correctional Services,1679 although mismanagement may exacerbate the problem: and furthermore the problem is not a new one, but has plagued that 1677 Ibid. 1678 Ibid. 1679 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 17. 348 Department of Correctional Services since 1965.1680 However, what has changed significantly in the past several years is that the growth in prison population is no longer being driven by prisoners awaiting trial but more so by those who have already been sentenced, including a 1023% increase in those sentenced to life in prison.1681 The rise in long term imprisonment is attributed to minimum sentencing legislation.1682 Overcrowding is the major cause of generally inhumane and unacceptable conditions of detention at most correctional centres. These conditions make it almost impossible to run rehabilitation programmes. This is deeply problematic as rehabilitation should be at the centre of all Department of Correctional Services (DCS) activities.1683 An attractive solution would be for the DCS to build more facilities. This solution is colloquially referred to as “building its way” out of difficulties. Building its way out of overcrowding is effectively impossible, since there is a shortage of 50 408 beds and the average cost of a bed, and its necessary ancillaries is R495 000 per bed. This means that the DCS would have to pay approximately R22.6 billion to properly provide for the existing number of prisoners. However this, even if it were possible, does not immediately address the problem as it will take years to construct such a facility.1684 Furthermore, as the population of the country grows so do the number of 1680 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 18. 1681 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 20. 1682 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 21. 1683 Ibid. 1684 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 22. 349 prisoners.1685 Therefore, even if the current needs are addressed, by the time these facilities would be complete there would again be a shortage. Therefore, other alternatives need to be considered in order to reduce the demand on the scarce resource of prison space.1686 In his 2009/20101687 annual report the inspecting judge noted that at many prisons prisoners are obliged to spend up to 23 hours per day locked up in their cells. This inevitably exacerbates the effects of overcrowding.1688 No prisoner should be locked up in a cell for 23 hours per day and deprived of exercise and fresh air for this length of time.1689 In his 2010/20111690 annual report the inspecting judge noted that there is a failure to adhere to the policy of subjecting transferred prisoners to a full medical examination1691. There is inadequate provision of psychological health services1692 and general access to health services and medication remains a serious problem.1693 1685 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 19. 1686 Judicial inspectorate of prisons "Annual Report for the period 1 April 2008 to 31 March 2009" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 22. 1687 Judicial inspectorate of prisons "Annual Report for the period 1 April 2009 to 31 March 2010" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013). 1688 Judicial inspectorate of prisons "Annual Report for the period 1 April 2009 to 31 March 2010" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 15. 1689 Judicial inspectorate of prisons "Annual Report for the period 1 April 2009 to 31 March 2010" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 19. 1690 Judicial inspectorate of prisons "Annual Report for the period 1 April 2010 to 31 March 2011" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013). 1691 Judicial inspectorate of prisons "Annual Report for the period 1 April 2010 to 31 March 2011" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 21. 1692 Judicial inspectorate of prisons "Annual Report for the period 1 April 2010 to 31 March 2011" Judicial Inspectorate for Correctional Services < 350 Different provinces have different levels of average overcrowding with the highest level of overcrowding in Gauteng (172.65%), followed by the Eastern Cape (146.35%) and Western Cape (142.95%). On 31 March 2011 18 prisons were critically overcrowded by 200% or more.1694 Furthermore, overcrowding is likely to create conditions of detention that are not consistent with human dignity and are not likely to produce rehabilitation.1695 The inspecting judge again noted that the majority of prisoners currently in detention constitute long-term offenders serving sentences ranging from 20 years to life imprisonment. Furthermore, there has been a significant increase in the numbers of those serving life sentences and those serving sentences in excess of ten years’ imprisonment.1696 In line with these concerns, the relevant government departments have undertaken to review the minimum-sentence legislation that has contributed to increases in prison population and to conduct research into the effect of long sentences on costs, overcrowding and prison gangs.1697 http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 35. 1693 Judicial inspectorate of prisons "Annual Report for the period 1 April 2010 to 31 March 2011" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 36. 1694 Judicial inspectorate of prisons "Annual Report for the period 1 April 2010 to 31 March 2011" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 11. 1695 Judicial inspectorate of prisons "Annual Report for the period 1 April 2010 to 31 March 2011" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 13. 1696 Judicial inspectorate of prisons "Annual Report for the period 1 April 2010 to 31 March 2011" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 14. 1697 Judicial inspectorate of prisons "Annual Report for the period 1 April 2010 to 31 March 2011" Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 14 – 15. 351 In his 2011/20121698 annual report, the inspecting judge noted that the problem of chronic overcrowding and its deleterious effects on prisoners resulted in treatment of prisoners that was not consistent with what was required by legislation. The problem persisted despite the incremental addition of additional capacity.1699 Although there has been a slight improvement in levels of overcrowding some prisons are still extremely overcrowded.1700 As an explanation for the generalized inadequate treatment of prisoners and the undignified condition of their detention, the inspecting judge was not prepared to accept that it is solely overcrowding and its unintended consequences that are responsible for this situation. Although overcrowding does have deleterious effects the inspecting judge will require rational and justifiable reasons that show that all reasonable alternatives were considered before accepting a limitation of the rights of prisoners.1701 The inspecting judge has pointed out a significant statistic: with a 25% increase in total prison population, there was an increase in the natural death rate of 250%. In his view this is illustrative of the very serious consequences of prison population size exceeding approved occupancy.1702 He ascribes this to various factors, including the fact that tuberculosis, pneumonia and AIDS were the most common causes of natural death. But he also points out that tuberculosis and pneumonia are highly treatable 1698 Judicial inspectorate of prisons "Annual Report for the period 1 April 2011 to 31 March 2012" Judicial Inspectorate for Correctional Services 352 and preventable with appropriate management and health care: however this becomes almost impossible in overcrowded conditions and furthermore these diseases are more likely to be transmitted in overcrowded spaces.1703 Moreover overcrowding causes staff shortages, including shortages in the medical, social and educational fields. As a result prisoners are not properly assessed on admission and only receive treatment and medical services after a significant time in detention, and then only if they specifically request it.1704 4. PRISON GANGS Prisoners are owed a duty of care by the state when it deprives them of their liberty.1705 The foremost aspect of this care is to ensure the safety and welfare of the prisoner.1706 Prison authorities are expected to create environments in which all prisoners can be safe and free from abuse and where all are able to mix without fear of assault or other violence, whether from staff or other prisoners1707 in a safe environment.1708 Yet the activities of prison gangs are marked by violence and corruption. When the state permits prison gangs to prosper it is failing in its duty to the prison population. 1703 Judicial inspectorate of prisons "Annual Report for the period 1 April 2011 to 31 March 2012" Judicial Inspectorate for Correctional Services 353 4.1 ORIGINS The history of the numbers gang differs depending on which gang provides the information. The basic elements are however similar.1709 A person named Po recruited two young men called Nongoloza and Kilikijan. These two formed a gang which robbed in the Transvaal area. There were 15 men in the gang. Po wrote a set of laws for them on a piece of hide and this law was subsequently transferred onto a rock. In time the rock broke and Kilikijan had only half a set of laws and Nongoloza the other half. This created doubt in Kilikijan’s mind regarding what was contained in the other half. Whilst returning from a raiding expedition one day Kilikijan found Nongoloza having sex with a young man. He was affronted and challenged Nongoloza and drew his sabre. Nongoloza said the laws provided that he could have sex with the young man. The old man Po was consulted and he referred the two leaders to the mine compounds to find out what the custom there was. Po went further and told the young men to leave his cave and not return.1710 Nongoloza and Kilikijan parted ways but Kilikijan left behind the young man with whom Nongoloza had sex. Kilikijan now had seven members and Nongoloza had eight. Thus there were two (2) leaders with seven (7) and eight (8) members respectively, hence the infamous prison gangs known as the 27s and 28s. The parties dispute the provisions of the original laws and also whether it is “natural” for men to have sex with men. The 28s argue that the miners engage in homosexual sex and therefore it is natural. The 27s argue that because the miners engage in homosexual sex it is therefore foreign and reprehensible.1711 In time Kilikijan and Nongoloza ended up in the same prison and there their dispute continued: this included the naming of items in prison. There they also met Grey, a gambler, who had helped Kilikijan when he was in solitary confinement and on a 1709 Van Zyl Smit South African Prison Law and Practice 48. 1710 Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013) 8. 1711 Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013) 9; Jali 148 – 149. 354 spare diet. Grey carried with him a “Kroon”, a piece of money, and this represented wealth. The parties allowed Grey and his six associates to form a third group in prison, i.e. the 26s (six members) whom the 27s undertook to protect from the 28s. They agreed no more gangs would be permitted in prison. And so the three camps were formed, each with its own purpose and ethos. The 26s were to accumulate wealth and were to distribute it among the other gangs. Their modus operandi did not include violence, but did include cunning and trickery. The 28s were to fight for better conditions for all prisoners. They would also have sex in the manner permitted in their custom. They were not permitted to have sex with members of other gangs. The 27s were to keep the law and ensure peace among the other three gangs. It was their purpose to address wrongs by exacting revenge. Their ethos was to spill blood if it was spilled by enemies.1712 The history is more complicated than set out above and each element of the aforementioned myth has a symbolic meaning. From these meanings and symbols emerges the complex gang hierarchy into which prisoners are organized.1713 There are also non-number gangs such as the Big 5 whose main objective is to work with members of the DCS. Their distinguishing mark is possession of good quality shoes, called ganders, with which they can deliver a lethal blow. Another non- number gang is the Airforce whose main objective is to escape from prison. It seems however that all the gangs have very similar practices including trickery and sexual relations among prisoners.1714 1712 Jali 149 – 150. 1713 Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013); Jali Report 149 – 153. 1714 Jali Report 145 – 146. 355 In certain areas such as the Western Cape there is an overlap between the street gangs and the prison gangs so that the same gangs operate both inside and outside prison.1715 The number gangs, by ethos, are intended to complement each other’s activities, but in practice they compete for scarce resources and for membership, even though most prisoners do become gang members.1716 Generally each prison will have a dominant gang. This gang will have its own disciplinary structure which operates independently of the discipline structures of the prison authorities. Thus, when there is an attempt by another gang to assert itself in some way, or if there is a transfer of prisoners from one prison to another, there is a likelihood of violent conflict.1717 4.2 ETIOLOGY There are various theories regarding the causes of prison gang formations. In South Africa two theories have been proposed. Firstly, the quasi-military structure of the gangs is supposedly an extreme parody of the apartheid prison system itself and secondly, there is the idea that gangs exist as a counter against the psychological and material pains of imprisonment.1718 Some prominent theories which seek to explain the causes of gangs are the diffusionist or importation theory and the functional or deprivation theory. The diffusionist theory posits three sub-cultures, namely, a prisoner sub-culture, a criminal or thief sub-culture and a legitimate or conventional system. These theories posit the gang culture as a manifestation of the criminal culture that exists outside the prison. The deprivation theorists argue that the inherent degradation of life in prison ensures 1715 Jali Report 147, 171; Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013) 44. 1716 Jali Report 171. 1717 Human Rights Watch “Prison Conditions in South Africa” Human Rights Watch 356 the spread or the continued survival of gangs in prisons. Prisons remove from the prisoner the meaningful exercise of his normal decision-making processes. This includes the removal of the prisoner’s ability to make decisions for and about himself, such as the choice or ability to raise children, to forge a career, when to clean himself, when to use the telephone and when to eat and sleep and so forth.1719 Gangs provide prisoners with goals and military structure which in turn give prisoners meaning, purpose and possible protection1720 in a violent environment. Gangs can be seen as counteracting ills of imprisonment such as idleness, boredom, institutionalisation, powerlessness, deprivation of goods and services and even sexual frustration. These factors further contribute to the supposed benefits of protection, status, recognition and respect.1721 1722 According to Steinberg prisoners are exposed to a process of infantilisation. Hence they are deprived of personal agency, i.e. the normal daily exercise of choice regarding the many factors that influence the life of the ordinary individual. These would include the choice to raise children, the choice of a mate and career, choosing when to wash, whether to use the telephone, engage in heterosexual activity and so forth. The prison experience strips the adult of these options: this removal of the ability to make those simple choices constitutes infantilisation. This process has been described by the sociologist Goffman1723 as “mortification” of the prisoner. The prison is described by Goffman as a total institution, i.e. one which is isolated and made up of an enclosed social system whose primary purpose is to control most aspects of its participants’ lives. The prisoner is abased, degraded and humiliated by admission procedures and deprived of most of his property. Steinberg argues that no 1719 Jali Report 146. 1720 Jali Report 171. 1721 Jali Report 147, 170, 171; Human Rights Watch “Prison Conditions in South Africa” Human Rights Watch 357 matter how much the prison is transformed it can never be anything other than a total institution. This is because, by its very nature, control of the lives of prisoners is transferred to the prison authorities.1724 This argument is similar to that put forward by Snacken and van Zyl Smit.1725 Goffman proposes four types of response to mortification, namely, situational withdrawal, which is a mental flight from the institution; colonization, which is a rationalizing that life in prison is better than outside the prison; conversion, which is an effort to be the perfect prisoner; and intransigence, which is the rejection of the legitimacy of the institution and an effort to wage war against its authority. The advent of number gangs, argues Steinberg, is an example of intransigent response.1726 This type of response he argues, retrieves for some of the members a degree of agency in the form of masculine virtues such as bravery and strength.1727 4.3 SEXUALITY IN PRISON AND THE GANG SYSTEM Prison has its own economy1728 dominated by scarcity1729 and deprivation.1730 For example food,1731 shoes, sex and dagga become prized items that can be exchanged 1724 Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013). 1725 Van Zyl Smit and Snacken Principles of European Law and Policy Penology and Human Rights 349. 1726 Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013) 15. 1727 Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013) 16. 1728 Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation 358 and bartered for similar things. For example, sex is traded for a cigarette.1732 The economy of deprivation and scarcity can be illustrated by juveniles having sex in exchange for food or blankets.1733 The primary relationship in which sex occurs in prisons is termed “marriage”.1734 These marriages are sanctioned and institutionalised by prisoner power-structures. The two roles in these marriages are those of husband and wife. The husband is the stronger and more powerful. He is obliged to provide for the wife or “wyfie”. The wife is a young boy or catamite and is obliged to provide the husband with sex.1735 The husband in return is expected to provide the wife with food, cigarettes, dagga and other goods, while their wives remain passively in the cells.1736 These roles are also defined by the type of crime that was committed. For example, a robber who used violence and weapons is a man, but a fraudster or a rapist, who is afraid of violence, would be treated as a woman and more likely to be victimized.1737 Boys are coerced into these relationships by means of both trickery, in which their naiveté and vulnerability are exploited and by holding over them the threat of violence.1738 1732 Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation 359 The initiation of the new member into the gang is characterised by extreme violence 1739 1740 and tattooing. Steinberg and Jali both record that the initiation ceremony involved stabbing a guard. After the initiate had stabbed the guard further significant violence would follow. This would be the backlash of the warders who would beat and assault the prisoner severely and then put him in solitary confinement and on a spare diet. With tattooing needles are often shared: this can lead to the spread of diseases such as HIV.1741 The level of violence of the initiation ceremony can further be illustrated by way of an example. A gang member was murdered by a member of a rival gang. This gang wished to protect the accused. In order to do so they had an initiate shoot five witnesses. The five witnesses were all members of the initiate’s family.1742 The economy of scarcity places a premium on luxuries such dagga, mandrax and alcohol. These are obtained either through visitors or smuggled in through corrupt warders.1743 These avenues of corruption and smuggling are controlled by the gangs.1744 The provision of these luxuries to other prisoners, especially the younger and more vulnerable, creates the obligation of indebtedness to the older and stronger providers. The only means through which these younger prisoners can discharge that indebtedness is through sex. This blurs the distinction between consensual and coerced sex.1745 The primary strategy to compel a prisoner to engage in sexual intercourse is an economic one. When this strategy fails, as would be the case for a prisoner who has regular visitors who supply him with goods, then violence and intimidation are 1739 Ibid. 1740 Ibid. 1741 Jali Report 166; Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013) 23. 1742 Jali Report 167. 1743 Jali Report 171. 1744 Jali Report 176; Judicial inspectorate of prisons “Annual Report for the period 1 April 2006 to 31 March 2007” (31-03-2007) Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/ANNUAL%20REPORT%202007.pdf > (accessed 28-04-2013) 15. 1745 Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation 360 employed in order to compel the prisoner to submit to sex. The target victim is harassed and intimidated and beaten. The older prisoner will offer protection from this harassment and this will then create the obligation to have sex. The entire scheme is orchestrated by a gang. If this strategy also fails then often the target will simply be gang raped.1746 Attractive males especially, but not exclusively, are highly prized and the sexual exploitation of these youths begins in the juvenile sections of the prison.1747 Sexual assault and rape is not only used for pleasure, but is sometime used as a form of punishment for persons who will not submit or who are deemed to be arrogant.1748 Where gang rape is employed as a punishment this may include the intentional transmission of HIV/AIDS by persons known to be HIV positive.1749 This form of punishment has become known as a “slow puncture”. Uchincha ipondo, consensual homosexual sex where the partners are not necessarily in defined male/female roles, is frowned upon and if persons are caught doing this then they are often punished, usually by gang-rape.1750 This however will depend upon a variety of factors, such as who is in charge of the cell, the general level of tolerance, the ability to pay bribes or offer sexual favours, the age of the offender and his rank in the prison.1751 Boredom, idling and the resultant frustration in prison, for example where there is a lack of rehabilitation programmes, television or other entertainment, are 1746 Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation 361 significant contributing factors to sexual exploitation and abuse as well as to gangsterism and violence.1752 There is a significant degree of arbitrariness in the experiences of imprisoned prisoners. For example, a particular communal cell may be characterized by a significant amount of inter-prisoner violence whereas another cell in the same prison may be relatively peaceful. One of the factors contributing to this arbitrariness is the dominant prisoner who has de facto control of the cell.1753 Similarly, overcrowded institutions with communal cells, have more violence and prisoner rape, and therefore, might be more threatening than a maximum security institution such as C- Max.1754 Each gang has its own set of rules, practices and secrets. Certain of them disavow sex as part of their ethos, but others only pretend to as part of the process of recruitment. In this way they engage in deception of potential recruits. However, despite the supposed ethos of non-homosexual conduct or the pretence thereof, all of them engage, in practice, in homosexual sex and employ the marriage relationship described above with men, or “soldiers”, and wives or “wyfies”.1755 Sexual activity, violence and the gang structure, which are all prevalent in South African prisons, are completely intertwined.1756 1752 Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation 362 Research indicates that what distinguishes the 28s from other gangs is not the keeping “wives” for sex, but that the 28s will go to war with another gang if a relationship is threatened from outside its ranks. The 28s also have a documented penchant for homosexual relations with younger male prisoners. The power relationships that underlie the male/female relationships in prisons are supported by the gangs and play an important role in sustaining it.1757 Steinberg argues that within the 28s the concubines, who are also known as the silver line, play a role as the intellectual aspect of the gang, whereas men, who are also known as the ndotas or gold line, are the soldiers who fight and guard the camp.1758 This is a re-enactment of life in the Zulu kraal with the soldiers as men, who are fiercely masculine, and the silver line as the women.1759 As soldiers are ranked so are wives. Certain ranks of wives are given to certain ranks of gang members. So, for example, a new wyfie is able to be used by soldiers for a time, but when he is promoted to the next rank he is reserved for a higher rank of gang member. Certain gang members will use a wife for a time and then the young male is passed around for others to use for sex. Furthermore, within the ranks of a gang, rape and gang rape1760 are a means of punishment.1761 Punishment within the gang can also be the death sentence. It is typically the soldiers that will carry out the punishment. As many as fifty or a hundred soldiers will carry out the task of a gang rape.1762 The gangs have elaborate structures, including judicial structures, and it is 1757 Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation 363 these judicial structures that conduct a hearing, decide upon guilt and the sentence.1763 The hierarchy of wives consists of a senior wife in prison who will school the other wives on the appropriate conduct for, and what is expected of, a wife in prison. These wives are not only trained for the pleasure of other gang members,1764 but are also taught how to use sex in order to obtain commodities in the prison.1765 Non-gang members are not permitted to have sex in prison. If they want to have sex then they must pay a gang for that privilege. If they fail to make that payment or if they are caught having sex without the necessary permission, they will have to pay or be punished by being raped.1766 As discussed above, prisoners are cast in a particular gender role. This role is either as a husband or as a wife. The prisoners retain that gender role during sexual activity.1767 The man penetrates the “woman” and no deviation is permitted. To be a woman in prison is a thing of shame. Women are demeaned, command no respect and become sex objects.1768 When brought into a gang a prisoner is subjected to certain processes in terms of which he is defined as either a man or a woman. To be a man will usually involve an act of violence where blood is drawn. Gangs also ensure that the sexual identity of 1763 Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013) 33. 1764 Jali Report 433. 1765 Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation 364 the woman is maintained, that is, “she” cannot easily leave that role. However, it is possible for a woman to be purified of his womanhood and to become a man. The contamination can be cleansed by an act of violence where blood is drawn, such as the stabbing of a non-gang prisoner or a warder.1769 The fear of an increase of their prison sentence for acts of violence usually traps wives in this role.1770 As with allocation of gender in the gang, so it is with promotion: it is necessary for the prisoner to prove his masculinity with displays of violence and violence-related courage and bravery.1771 It is a fundamental belief of the gangs that negotiation is not by words, but by violent deeds.1772 Researchers have observed patterns of abuse where the abused “women”, who have been promoted to men, in order to obtain revenge for the wrongs done to them, will themselves become abusers.1773 Violence and gangsterism are completely intertwined.1774 The distinction between three types of sexual relationships in prison is important. The most common of all is the marriage style in which there are fixed gender roles. Uchincha ipondo and gay relationships also exist. Uchincha ipondo is a reciprocal sexual act for short term gratification and release whereas a gay relationship 1769 Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation 365 contains an emotional element. The latter two are frowned upon and may result in punishment in the form of gang rape.1775 Further arbitrariness in the nature of a prison sentence is demonstrated by the fact that depending on which area the prisoner is kept he is more or less likely to receive anal sex, as opposed, to thigh sex. In the Western Cape anal sex is apparently popular, but less popular in Gauteng. Similarly, certain gangs will only employ thigh sex where others only employ anal sex. If a Big-5 is found having anal sex he may be murdered.1776 Coercive sex, along with an awareness of HIV/AIDS, and violence-for-status leads to a sense of fatalism and hopelessness in which there is a disengagement with the reality of the risks to which the prisoners expose themselves.1777 Typically prisoners who have been subjected to this type of abuse suffer from post-traumatic stress syndrome. The symptoms of this syndrome include depression, anxiety, failing memory, difficulty in concentrating, emotional instability, headaches and vertigo.1778 Further evidence of the arbitrariness with which prisoners are treated is illustrated by the conduct of different warders. Warders enjoy power within the prison. The prisoners experience different treatment from cell to cell depending upon which warder is in charge of that particular cell. If a warder is corrupt he may sell new young prisoners to other prisoners or he may run his own gang, within the particular communal cell, for the purpose of robbing other prisoners.1779 Warders have been known to get drunk on duty and demand sexual favours from prisoners in return for 1775 Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation 366 allowing the prisoners to use telephones, see visitors or leave their cells for routine 1780 exercise sessions. Jali reports that gangs and corrupt warders co-operate and assist each other and further that gangs alleviate the pains of imprisonment for some but increase it for others.1781 Prisons are economic environments in which scarcity is enforced. Almost all personal belongings of the prisoner are removed and the ability of the prisoner to provide for himself is removed. His ability to protect himself is also largely removed. The prisoner is in a state of complete dependence and vulnerability. It is this that corrupt warders can exploit. The warders are paid by prisoners or their families or associates to bring food, drugs, weapons and money into the prison.1782 The warders therefore participate in smuggling networks. In this way they are also key to supporting the gangs who use these commodities to maintain their own power: moreover they can be party to the sexual exploitation of the young and vulnerable. The conduct of warders further compounds exploitation of the weak and vulnerable and perpetuates the power of gangs in various ways.1783 These methods include the following: warders add to the fear of new prisoners on admission; they refuse juveniles access to schooling, because the schools are in different sections of the prison where gang members may not be able to access them; they encourage the wyfie system because it makes the prisoners easier to handle, that is, more docile; they allocate prisoners to cells in exchange for money; they refuse to take complaints from prisoners; they may charge the abused prisoner with a disciplinary offence instead of charging the abuser, in exchange for money; they turn a blind eye to kidnapping and rapes in exchange for money; and they drop cases in exchange for money.1784 Warders even employ prisoners in order to sell drugs for them in prison and in that way supplement their salaries.1785 1780 Jali Report 165. 1781 Jali Report 141. 1782 Jali Report 168. 1783 Judicial inspectorate of prisons “Annual Report for the period 1 April 2006 to 31 March 2007” (31-03-2007) Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/ANNUAL%20REPORT%202007.pdf > (accessed 28-04-2013) 15. 1784 Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation 367 Gangs employ terror as a tool to prevent raped prisoners from complaining, to prevent other prisoners from being witnesses and to prevent other prisoners from assisting prisoners who are about to be victimized: similarly gang-lore ensures that gang-members remain silent.1786 The sexual abuse of the young and vulnerable is not limited to gangs but may also be committed by prison warders on occasion.1787 Gangs still render many prisons unmanageable1788 and rehabilitation is not possible under these circumstances.1789 Gangs import a high level of violence1790 into prisons in which murder of prisoners is not unusual.1791 One of the greatest obstacles to dealing with gang-related activity in prisons is overcrowding.1792 Because of these conditions Jali reports that imprisonment policy in South Africa currently is unlikely to withstand constitutional scrutiny, because basic human rights are not being respected: for example, amongst others, gang-related activity is being tolerated by the authorities in prison.1793 1786 Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation 368 In the matter of Moegamat Fatieg Jaftha v The Honourable Minister of Correctional Services1794 the court accepted the general principle that a prisoner can sue the State for damages where he was assaulted by a fellow prisoner. The state had conceded the general principle that it had a duty of care to ensure the plaintiff’s safe custody and his physical and psychological integrity. The court was required to decide whether there was negligence on the part of the defendant’s employees, that is, the relevant prison warders and/or other staff, in failing to prevent the one prisoner from stabbing the other. The dispute concerned two prisoners who had already been involved in a fight.1795 Later they were both assaulted by warders.1796 After being strip searched for weapons1797 they were taken to single cells in order to keep them separate and later taken to the hospital section for treatment. They were then handed over to a nurse in the hospital section. The one prisoner, whilst being treated, grabbed a scalpel and when he exited the treatment area he attacked the plaintiff with the scalpel.1798 The perpetrator was then again assaulted by the warders. The court accepted the general principle that there is generally no liability for an omission and that there can only be liability for an omission if there is a duty to act - and further if there is culpability on the part of the person who failed to discharge that duty.1799 The court therefore held that there was a duty to protect the one prisoner from the assailant since the attack was reasonably foreseeable.1800 The court found that the defendant’s employees had failed to take reasonable measures to avert the harm that was foreseeable. The measures that should have been taken included segregating the fighting prisoners since the prison did have the necessary facilities.1801 The court accordingly found the defendant liable. 1794 [2012] 2 All SA 286 (ECP). 1795 Par 28. 1796 Par 5. 1797 Par 25. 1798 Par 3. 1799 Minister van Polisie v Ewels supra. 1800 Par 34. 1801 Par 37. 369 In Mxolisi v Minister of Correctional Services1802 the court found that in terms of the Correctional Services Act,1803 correctional officials must take such steps as are necessary to ensure the safe custody of every prisoner and also maintain security and good order in every prison. This is because the purpose of the correctional system is to contribute to maintaining and protecting a just, peaceful and safe society by detaining all prisoners in safe custody whilst ensuring their human dignity. In Paul Kennedy and Others v The Minister of Prisons and Correctional Services1804 the dangers of poorly matched prisoners placed in communal cells was aptly illustrated as was the dangers of prison gangs. The Plaintiffs in this matter had been severely injured after a gang fight broke out following a dispute about money. The court in this matter did not hold the prison authorities liable because to have entered the cell to protect the prisoners who were being attacked would have been too dangerous.1805 This decision can be criticized because it did not consider liability for the poor decision to incarcerate warring gangs, who were known to have made threats to each other, in the same cell.1806 It also did not consider the fact that the prison was understaffed and that there were insufficient warders to cope with the potential threats.1807 There may also have been potential liability for failure to train staff on how to deal with a situation of this nature, that is, to keep warring gangs separate and how to prevent dangerous weapons from entering the prison.1808 In Minister of Correctional Services v Tobani1809 the court was required to decide whether a prisoner was entitled to damages following his unlawful detention in St Albans prison. The prisoner had been detained in prison in the awaiting trial section even though the charges against him had been withdrawn at court. The reason that the prison authorities cited for this was that he did not respond when his name was 1802 (06/5172) [2008] ZAGPHC 107 (17 April 2008) 370 called on a monthly basis. The court held that there could have been numerous reasons why he had not responded when his name was called. Two of these related to the gross over-crowding of prison facilities and the considerable intimidation of prisoners by prison gangs.1810 In S v Hanges1811 the accused escaped from custody fearing for his life. He had testified against other prisoners in a prison murder case and was advised that he would be transferred. This never happened. His sentence for escaping was reduced from 12 months to one month. The accused reported the planned prison murder before it happened and his warning was ignored. Afterwards he testified and the court assured him he would be moved to another prison. He was not moved. Fearing for his life he escaped. The court noted how difficult it is to prove prison murders, because of intimidation of witnesses. The court noted that when a prisoner testifies against other prisoners he places his life at risk. In another matter, in the same division, a prisoner who had testified in a gang-related murder was himself murdered.1812 In S v Dlamlenze1813 a prisoner was found guilty of the offence of escaping from lawful custody. However, the court imposed only a suspended sentence instead of a further prison term because the life of the offender had been threatened by the 28s prison gang. The offender had reported this threat to the prison authorities but was ignored. The court took judicial notice of the fact that there are very dangerous gangs functioning in South African prisons and that these gangs can cause murders to be committed in prison. 5. PRISON STAFF In S v Williams and Others1814 the court held that the state is a role model par excellence. The court held that the manner in which the state punishes its weakest and most vulnerable must enhance rather than diminish their self-esteem and human 1810 380 E – H. 1811 1974(1) SA 496 (O). 1812 498 A-C. 1813 1976 (1) SA 766 (O). 1814 1995 (3) SA 632 (CC). 371 dignity. If the State fails to do this then the likelihood of a proper regard for a culture of decency and respect for the rights of others will be diminished. The court further held that the government is the potent and omnipresent teacher that teaches the whole people by its example.1815 This principle has been labeled the beneficent state principle in this research. The representatives of the state tasked with carrying out this mandate and assisting with the rehabilitation of prisoners are the staff members of the Department of Correctional Services, i.e. warders and management personnel of the prisons. The warders however are the representatives of the state that have day-to-day contact with the prisoners and are to carry out the mandate of prisoner rehabilitation. In terms of S v Makwanyane1816 and S v Williams1817 arbitrariness in the manner a punishment is carried out is a significant contributing factor to its constitutionality. The legal position in South Africa is that prison staff carry out an important public service and their recruitment, training and conditions of work should enable them to maintain high standards in their care of prisoners. Prisons provide a public service with the objective of contributing to the public good and are of great importance.1818 Because prison staff have considerable power over prisoners this can easily lead to an abuse of power: therefore prison staff require a strong ethical framework and should be carefully selected and properly trained, supervised and supported.1819 Staff training should include instruction in the international, regional and national human rights instruments and standards. The prison administration is responsible for outlawing corrupt or dishonest1820 activities between staff and prisoners. In other words the role of prison staff is to ensure that prisoners are not treated in a manner which is cruel, inhuman or degrading.1821 They 1815 647 B – D. 1816 1995 (3) SA 391. 1817 1995 (3) SA 632 (CC). 1818 Coyle A Human Rights Approach to Prison Management 13; UNSMR Art 46. 1819 Coyle A Human Rights Approach to Prison Management 13; South Africa, Correctional Services Act s 37(1A) and s 96(3); Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Art 18; Collins Jails and the Constitution An Overview 75. 1820 South Africa, Correctional Services Act s 95A. 1821 EPR Rule 72(1). 372 shall ensure that the prison is safe, that security is maintained; that good order and discipline prevail in prison1822 and that rehabilitation and re-integration programmes are conducted.1823 As representatives of the community members of staff shall at all times conduct themselves and perform their duties as in a manner that serves as a good example to the prisoners and commands their respect.1824 Moreover prison staff shall include the specialists necessary to care for the prisoners and to facilitate their rehabilitation and re-integration into society. These specialists should include psychiatrists, psychologists, social workers, teachers and trade instructors.1825 Broadly, two areas will be now be considered, i.e. staff violence and staff corruption. The primary source is the Jali Report as this is the most comprehensive report on this topic in South Africa. 5.1 STAFF VIOLENCE 5.1.1 STAFF ON STAFF VIOLENCE At the time of the Jali Report the Police and Prisons Civil Rights Union (POPCRU) was effectively in control of the DCS into which it had introduced a culture of lawlessness. It had become normal for DCS staff, or members, to be forcibly removed from their positions and for unlawful actions to be perpetrated with impunity. Members who would not co-operate would be forced out of their positions and POPCRU was using intimidation as a general tool. Corrupt activities were pursued by POPCRU members with no likelihood of punishment.1826 The Minister had to obtain union consent in order to make decisions and High Court orders and those of the inspecting judge were often ignored.1827 1822 EPR Rule 73; South Africa, Correctional Services Act s 26. 1823 Coyle A Human Rights Approach to Prison Management 14; EPR Rule 72(3); South Africa, Correctional Services Act s 96(1). 1824 UNSMR Art 48; EPR Rule 75. 1825 UNSMR Art 49; South Africa, Correctional Services Act; EPR Rule 89; The Kampala Declaration On Prison Conditions In Africa Art 6. 1826 Jali Report 114 – 115. 1827 Jali Report 116. 373 In order to prevent members from reporting corrupt activities, intimidation was employed. This was widespread and violent and went as far as murdering a female member of management who refused to participate in fraud and corruption.1828 POPCRU launched ‘Operation Quiet Storm’ in order to secure positions, promotion and benefits for their members. Staff who were members of Popcru were described as having no respect for law and order and engaged in several murders of fellow staff members in order to forward their goals.1829 Death threats were issued against the Minister, managers were assaulted, insulted, kidnapped, spat upon and so forth, almost all with impunity.1830 5.1.2 STAFF ON PRISONER VIOLENCE Prison authorities are responsible for creating environments in which all prisoners can be safe1831 and free from abuse and be able to mix without fear of assault or other violence, whether from staff or other prisoners.1832 The physical environment is also to be safe and fit for human habitation.1833 There are a variety of techniques for controlling violent prisoners and the use of force must be resorted to only when other forms of intervention have failed. When the use of force is employed, as a final resort, then the least force necessary should be 1828 Jali Report 26. 1829 Jali Report 92. 1830 Jali report 93. 1831 EPR Rule 52 and commentary thereon; International Covenant on Civil and Political Rights Art 10; Basic Principles for the Treatment of Prisoners Art 4; UNSMR Art 27; African Charter on Human and Peoples' Rights Art 6, EPR Rule Commentary 52; Edwards v UK supra; South Africa, Correctional Services Act s 2; Peru, Penitentiary Code 1991 Art 21; Turner v Safley supra; Wolff v McDonnell supra. 1832 Premininy v. Russia (Application No. 44973/04) (2011) 374 employed and for the shortest duration of time.1834 The force must be proportionate to the objective.1835 These are the basic principles of legitimacy and proportionality.1836 Judging from the earliest reports member on prisoner violence has been a widespread problem in South African prisons. This violence ranges from illegal solitary confinement and spare diet1837 to direct brutal assaults. Steinberg1838 describes these “carry-ons”. These are assaults where groups of warders would arm themselves with batons, baseball bats and knobkerries and would cry “up” and the warders would attack the prisoners.1839 He also describes the “one-ones” which is the employment of solitary confinement with a salt free diet which is potentially life threatening.1840 Jali records that prisoners are subjected to assaults, abuse and also indirect abuse, in that they are expected to do certain duties, such as medically treating ill prisoners, washing dirty or soiled linen, running errands for warders and even clipping the toenails of warders.1841 Direct assaults of prisoners by the officials charged with their safe custody have been cited in various court cases.1842 Steinberg records that prisoners describe good and bad warders. Good warders largely abide by the rules, whereas bad warders are those who indiscriminately 1834 Coyle A Human Rights Approach to Prison Management 37; Van Zyl Smith South African Prison Law and Practice 182; EPR Rule 64(2); UNSMR 54; South Africa, Correctional Services Act s 32. 1835 South Africa, Correctional Services Act s 32; EPR Rule 64(1); Basic Principles on the Use of Force and Firearms by Law Enforcement Officials Art 4 and Art 5. 1836 Prison Reform International Making Standards Work: An International Handbook On Good Prison Practice 32. 1837 Hassim and Another v Officer Commanding, Prison Command, Robben Island and Another; Venkatrathnam and Another v Officer Commanding, Prison Command, Robben Island and Another supra. 1838 Ibid. 1839 Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013) 15. 1840 Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013) 21. 1841 Jali report 333. 1842 Blanchard and Others v Minister of Justice, Legal and Parliamentary Affairs and Others 1999 (10) BCLR 1169 ZS; Mtati v Minister of Justice 1958 (1) SA 221 (A). 375 assault prisoners.1843 Jali reports many assaults on prisoners by warders1844 with many resulting in the deaths of prisoners. It may then be argued that this would constitute either murder or culpable homicide, but the typical punishment received by a warder for this type of conduct is a written warning with no criminal charges being pursued.1845 Mere written warnings to DCS members are typically also issued for fraud.1846 There are also records of prison management taking policy decisions that assaults of prisoners by DCS members should not be punished in any manner, because prisoners are unruly.1847 Assaults may also be accompanied by efforts to further humiliate the prisoners such as stripping them naked and parading them before female DCS members.1848 A brief review of the inspecting judge’s report reveals the ongoing problem of prisoner assaults by DCS members. For example, in the 2005/2006 report 2494 complaints were received regarding such assaults whereas in the 2007/2008 report 1498 similar complaints were received.1849 Furthermore in the 2008/2009 report the inspecting judge expressed his concern about the high number of prisoner deaths due to assaults by DCS members on prisoners.1850 Deaths following such assaults were noted in Krugersdorp, George and Kwazulu-Natal. In the report for 2009/2010 the inspecting judge again expressed concerned about DCS members’ assaults on prisoners and noted that 2189 such 1843 Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013) 27. 1844 Jali Report 707, 716, 719, 727, 728, 730, 733, 735. 1845 Jali Report 706, 736. 1846 Jali Report 706. 1847 Jali Report 730. 1848 Jali Report 731. 1849 Judicial inspectorate of prisons “Annual Report for the period 1 April 2005 to 31 March 2006” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013) 17 18. 1850 Judicial inspectorate of prisons “Annual Report for the period 1 April 2005 to 31 March 2006” Judicial Inspectorate for Correctional Services 376 complaints had been received of assaults that had resulted in the deaths of prisoners.1851 In the 2010/2011 report the inspecting judge raised the matter of the disconcerting number of homicides committed by warders on prisoners. This usually followed the unnecessary use of force where the prisoner had posed little or no threat to the safety and good order in the prison in question.1852 In this report 2276 complaints1853 were received about assaults on prisoners with several deaths following such assaults.1854 In the 2011/2012 report the inspecting judge had elevated this problem of DCS member on prisoner assault to the level of a special project.1855 12% of all complaints were related to assaults by members on prisoners.1856 The inspecting judge stated that assaults on prisoners by officials involves an abuse of power and may qualify as torture.1857 Prisoners were assaulted with batons or shock-shields 1851 Judicial inspectorate of prisons “Annual Report for the period 1 April 2009 to 31 March 2010” (31-03-2007) Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 30, 39, 37, 60, 61, 63, 65, 73. 1852 Judicial inspectorate of prisons “Annual Report for the period 1 April 2010 to 31 March 2011” (31-03-2007) Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 23. 1853 Judicial inspectorate of prisons “Annual Report for the period 1 April 2010 to 31 March 2011” (31-03-2007) Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 32. 1854 Judicial inspectorate of prisons “Annual Report for the period 1 April 2010 to 31 March 2011” (31-03-2007) Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 32, 57, 60, 61, 62, 68. 1855 Judicial inspectorate of prisons “Annual Report for the period 1 April 2011 to 31 March 2012” Judicial Inspectorate for Correctional Services 377 used in conjunction with water. Other prisoners were placed in single cells for several days without food or basic amenities.1858 Since the Department of Correctional Services controls the reporting process, usually neither disciplinary nor criminal action is taken following assaults on prisoners by DCS members regardless of whether death ensues.1859 In this report 1945 complaints were received about DCS member assaults on prisoners with several deaths following such assaults.1860 Violence against prisoners by staff would vary from prison to prison which would again show arbitrariness in the nature of the punishment. Moreover the violence of warders extends beyond assaulting prisoners: in many cases Independent Prisoner Visitors, who are employed by the office of the inspecting judge, have also been assaulted.1861 Referring to Minister of Justice v Hofmeyr1862 Jali reports that it is commonly accepted that solitary confinement is one of the worst forms of torture that can be imposed.1863 Furthermore, a prisoner held in a super-maximum prison such as Pretoria C-Max Prison is subjected to torture since he is held in solitary confinement indefinitely, in an institution designed to break down the spirit of prisoner and make him suffer: in such circumstances correction and rehabilitation are not possible.1864 Furthermore, 1858 Judicial inspectorate of prisons “Annual Report for the period 1 April 2011 to 31 March 2012” Judicial Inspectorate for Correctional Services 378 contrary to the rule that prisoners are not to be punished any further in prison, Jali reported that there was no doubt that the purpose of a C-Max type facility is to further punish and even torture these prisoners.1865 Members assaulting prisoners are almost never prosecuted, because of the way in which the department and police co-operate.1866 There is also indirect violence where the authorities are fully aware of the actions of gangs in the prisons, but do nothing to protect the vulnerable. There is a high prevalence of HIV amongst prisoners: as a result when prison rapes and sexual assaults do occur, as they often do, the prison sentence, often for a minor crime, is effectively a death sentence.1867 Certain prisoners because of the way they look and because of their age are more vulnerable than others. These prisoners are particularly susceptible to sexual assault.1868 Being placed with prisoners with a history of violence also increases the possibility of being assaulted.1869 There are other official sources documenting the assault of prisoners by warders, for example, in Blanchard and Others v Minister of Justice, Legal and Parliamentary Affairs and Others1870 and in Mtati v Minister of Justice.1871. 5.2 STAFF CORRUPTION According to the Jali Report a distinction made between the manner in which prisoners are treated in prison and the conduct of corrupt prison warders is not valid . The rationale for this submission is that unacceptable treatment of prisoners is intimately linked to the conduct of corrupt officials.1872 1865 Jali Report 365. 1866 Jalie Report 425. 1867 Jali Report 446. 1868 Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation 379 Jali reports that fraud and corruption begin with the staff recruitment process which is characterized by nepotism, favouritism and bribery.1873 In addition to the recruitment of staff the merit awards and the promotion of staff are constantly tainted with allegations of malpractices, irregularities, nepotism and corruption.1874 There is thus an institutional culture in which corruption and maladministration are rife.1875 Large groups of the staff of the DCS are driven by greed and the need to make easy money and as a result corruption is endemic within the DCS.1876 Union activity, nepotism, favouritism, corruption and bribery have resulted in the appointment of many unqualified and incompetent people to various posts.1877 Once appointed they receive little or no training and the fraud and corruption that accompanied their appointment goes unpunished: moreover the appointment is not set aside.1878 The same networks of corrupt officials occupy positions from very senior provincial commissioners,1879 to low-ranking officials. These networks are extremely powerful and other staff live in absolute terror of them. As a result people are too afraid and intimidated to challenge their actions, regardless of how unlawful, wrongful, irregular or improper those actions may be.1880 They feel too intimidated because of the violence that these officials have been known to employ.1881 In addition to a culture in which corruption is rife and endemic1882 there is also a culture of lawlessness in which these corrupt members are not disciplined and transgressions are carried out with impunity.1883 In addition, often, the disciplinary 1873 Jali Report 60, 221, 827, 30. 1874 Jali Report 189. 1875 Jali Report 832. 1876 Jali Report 17. 1877 Jali Report 191. 1878 Jali Report 189, 248. 1879 Jali Report 219. 1880 Jali Report 60, 191, 189, 203, 246, 743, 98. 1881 Jali Report 225, 39. 1882 Jali Report 33, 36, 37. 1883 Jali Report 36, 37, 45, 54. 380 process itself has collapsed and is manipulated by very senior DCS members: this in itself amounts to corruption and an abuse of power.1884 In addition to manipulating the disciplinary process, there is widespread intimidation and harassment of whistleblowers.1885 Senior members of the DCS are regarded as being above the law.1886 Prisoners who have attempted to complain about corruption are targeted and victimized.1887 Moreover DCS members who are investigated often interfere with, coerce and intimidate witnesses when investigations against them are instituted. However, many acts of corruption, assault and criminal transgression go unreported, because whistleblowers are not protected and are deliberately targeted.1888 Generally, criminal investigations against members in prisons are not prosecuted because there is no incentive for victims to report any crime committed, whether it be a case of corruption or abuse. It is highly unlikely that the matter will be prosecuted and the risks are higher for the victim to complain than not to complain. The overwhelming majority of crimes against prisoners are classified as “undetected” by the police.1889 Corrupt officials employ various mechanisms to avoid the consequences of their actions and these include using other corrupt officials in the disciplinary process to delay the disciplinary prosecution long enough for it to fall outside the permissible time periods for prosecution at which point the matter is thrown out.1890 They also intimidate and threaten witnesses1891 and senior members manipulate the disciplinary system in other ways.1892 1884 Jali Report 743. 1885 Jali Report 132, 313. 1886 Jali Report 210, 219. 1887 Jali Report 369. 1888 Jali Report 425. 1889 Jali Report 428. 1890 Jali Report 702. 1891 Jali Report 719. 1892 Jali Report 744, 918. 381 Staff members or prisoners who attempt to expose corruption are immediately targeted and the risks to them become very high.1893 Witnesses are intimidated and harassed until they withdraw their statements,1894 or they are criminally charged1895 and embarrassed in other ways, while the perpetrators are protected and redeployed.1896 DCS members are engaged in extensive corrupt activities, including fraud in DCS processes such as recruitment, promotion, merit awards, logistics1897 and medical aid procedures.1898 This corruption also extends to corrupt relationships with prisoners. Vulnerable prisoners are easier targets for this type of activity. For example, a prisoner who received no visitors and thus had no commodities to trade in prison was used by a warder to sell dagga and mandrax to other prisoners for a monthly wage. This prisoner was also sent to the DCS member’s home to go and purchase the drugs from a person in the vicinity.1899 Jali noted that a United Nations research team focusing on corruption in South African prisons found that smuggling ranked as the third highest type of corrupt activity in South African prisons.1900 Corrupt officials are also involved in aiding and assisting with escapes of prisoners. Jali is of the view that the high rate of escapes in South African prisons is due to collusion between corrupt officials and the prisoners and not due to infrastructure.1901 Jali emphasizes that this type of corruption goes unpunished as the aiding and abetting of prisoner escapes does not normally attract either criminal or disciplinary sanction within the Department of Correctional Services.1902 The corruption extends to even the most basic necessities of the prisoners’ lives. A very widespread problem is that DCS members eat the prisoners’ food who therefore 1893 Jali Report 571. 1894 Jali Report 926. 1895 Jali Report 926. 1896 Jali Report 931. 1897 Jali Report 343. 1898 Jali Report 913. 1899 Jali Report 169, 170. 1900 Jali Report 169. 1901 Jali Report 365. 1902 Jali Report 312, 313. 382 do not receive the three meals a day they are entitled to. This makes the food a highly prized commodity in an economy of deprivation and scarcity. Prison cooks steal food from the kitchen and sell it to prisoners. Corrupt officials also sell food from outside the prison, such as chickens, to the prisoners.1903 In Ehrlich v Minister Of Correctional Services and others1904 the High Court granted an order directing that prisoners in the East London prison be served with three meals a day at the appointed times because the officials were not doing so. In Kutumela v Minister of Correctional Services and Another1905 the plaintiff claimed compensation for illegal detention in prison of approximately 3 months. During this time the prisoner received two meals a day, which resulted in his losing weight whilst in prison. Thus, as indicated by these cases, even a commodity as basic as food becomes something of which prisoners are deprived in certain prisons. This also adds an element of arbitrariness to imprisonment as a form of punishment. One of the other means warders employ to earn additional money is by exploiting the system of scarcity to sell sex slaves. Warders control who gets allocated to which cell, and who has access to health and psychological services and so forth. It is this vulnerability that is exploited for additional income.1906 Warders also supply luxuries and drugs in exchange for money1907 and will provide services outside of the prison for money such as withdrawing money from a bank at a charge. On occasions some simply steal money from the prisoners.1908 Thus corruption affects all aspects of prisoners’ lives, including the workshops that are meant for rehabilitation of prisoners,1909 as also kitchens and hospitals.1910 1903 Jali Report 376. 1904 2009 (2) SA 373 (E). 1905 (42154/2006) 2009 ZAGPPHC 51 (14 May 2009) SAFLII < http://www.saflii.org/za/cases/ZAGPPHC/2009/51.pdf> (accessed 04-05-2013). 1906 Jali Report 433. 1907 Jali Report Chapter 30, 320. 1908 Jali Report 178, 307. 1909 Jali Report 853. 1910 Jali Report 875. 383 The operations of gangs and corrupt officials are closely related. These two groups in the prisons, combined with the problem of overcrowding, have made it impossible to rehabilitate prisoners. Jali asserts that unless the issues of corrupt officials and gangs are addressed, crime in South Africa will continue to exist at the current levels and intensity. Jali further postulates that these factors may even cause an increase in crime. It was noted that regardless of the time and the offence for which a prisoner gets sent to prison he is put into prison with hardened criminals and comes into contact with drugs and corruption. On his release, he is often hardened because he has been raped and influenced by gang members and by corrupt officials.1911 Although all of these systemic problems plague the prison system generally, they do vary in intensity from prison to prison. In Pollsmoor prison, for example, the gangs tend to be more prevalent and they straddle the gap between the culture inside and outside the prison, that is, the number gangs function both in the community outside the prison and also inside the prison.1912 Johannesburg prison on the other hand, has a greater degree of corruption amongst prison warders who are involved in, amongst others, facilitation of escapes or disappearances of prisoners from prison; armed robbery; motor vehicle thefts and/or hijackings; drug smuggling and illicit sexual activities with female prisoners.1913 Thus, depending on which prison a prisoner gets assigned to, he will receive greater exposure to different aspects of the systemic problems. The type of treatment he is subjected to may even depend upon which warder he gets exposed to. For example, certain warders are more corrupt than others,1914 whereas others get drunk on duty and demand sexual favours from prisoners in return for allowing the prisoners to use telephones, see visitors or leave their cells for routine exercise sessions.1915 To conclude: it is therefore submitted that this type of punishment involves extreme arbitrariness. 1911 Jali Report 141, 144. 1912 Jali Report 156,157; Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05-2013) 42. 1913 Jali Report 281, 282, 283, 284, 288. 1914 Jali Report 291. 1915 Jali Report 165. 384 6. REHABILITATION PROGRAMMES The legal position is that the purpose and justification of a sentence of imprisonment is ultimately to protect society against crime. This can only be achieved if the period of imprisonment is used to ensure, so far as possible, that the prisoner is rehabilitated and able, upon his release, to be socially re-integrated.1916 There are five broad principles to be applied to prisons in order to facilitate the prisoner’s reformation and social rehabilitation, as follows: firstly, imprisonment is afflictive punishment in itself, by virtue of the deprivation of liberty and self- determination, and therefore the manner in which prisoners are treated shall not 1917 aggravate the suffering inherent in imprisonment. Secondly, the differences between life in prison and the positive aspects of life at liberty shall be minimized as much as possible. A failure to do so tends to lessen the responsibility of the prisoner and fails to respect the prisoner’s dignity as a human being.1918 Thirdly, prisoners shall be managed so as to facilitate their reintegration into society. They shall be encouraged to lead a law-abiding and self-supporting life when released back into society. The treatment shall therefore encourage their self- respect and develop their sense of responsibility.1919 Fourthly, every prisoner shall be assessed to determine his security classification, and also his medical, educational, social, psychological, religious, developmental, work and social reintegration needs. Thereafter an individualized plan must be created that contains the proposed intervention, aimed at addressing the aforesaid needs of the prisoner, detailing the individualized programmes that are required to rehabilitate and re- 1916 International Covenant on Civil and Political Rights Art 10; Universal Declaration of Human Rights Art 26 that emphasizes the right to education; UNSMR Art 58; Basic Principles for the Treatment of Prisoners Art 8; EPR Rule 102(1); Germany, Prison Act s 71. 1917 UNSMR Art 57; EPR Rule 102(2); South Africa, Correctional Services Act s 42. 1918 EPR Rule 5; UNSMR 60(1); Prison Reform International Making Standards Work: An International Handbook On Good Prison Practice 21. 1919 UNSMR Art 65; EPR Rule 6; South Africa, Correctional Services Act s 2(c). 385 integrate the prisoner and finally, implementing this individualized treatment programme.1920 Finally, prior to the release of the prisoner back into free society, steps shall be taken to ensure a gradual return to society. These steps may include pre-release programmes, partial or conditional release under supervision, co-operation with social services that enable all sentenced prisoners to re-integrate themselves into society with due regard for family life and employment.1921 Moreover the level of crowding in a prison shall not be so large so as hinder individualized treatment.1922 However, as previously noted, overcrowding severely hampers the DCS’s ability to implement rehabilitation programmes and even where the programmes do exist they are not effectively implemented.1923 As noted above, all of these systemic problems contribute to, and influence, each other. In addition, as has been pointed out, a number of factors inhibit the implementation of rehabilitation programmes. It is however necessary to discuss them again in this particular context. Generally, rehabilitation programmes are not operated in the DCS - or if they are it is done ineffectively. This is due to the emasculation of DCS management and the incompetence of the staff. This in turn is caused by the appointment of poorly qualified personnel which in turn is caused by the following: corrupt recruitment processes, the appointment of staff based on loyalty to the union instead of competency, the role of gangs in prisons, the appointment of management only from among existing staff and not from outside with no importation of much needed skills (the promotion process is also corrupt), and a failure to implement a culture where law and order prevail: instead there is a culture of lawlessness and impunity amongst the staff.1924 1920 UNSMR Art 63, Art 65 and Art 66; EPR Rules 103 and 104; South Africa, Correctional Services Act s 16, s 36 and s 41; South Africa, Correctional Services Regulations s 10 and s 14; Malawi, Prisons Bill s 43; Corrections And Conditional Release Act s 76 and s 77; Peru, Penitentiary Code 1991 Art 61; Germany, Prison Act s 71. 1921 UNSMR Art 79, Art 80 and Art 81; Malawi, Prisons Bill s 42(3). 1922 UNSMR Art 63(3). 1923 254. 1924 100. 386 In his 2007/2008 report the inspecting judge noted the lack of rehabilitation programmes1925 and received 8170 complaints about this lack.1926 In his 2008/2009 report the inspecting judge also noted the lack of rehabilitation programmes and received 16023 complaints.1927 Moreover the inspecting judge noted that young prisoners were not in rehabilitative programmes.1928 While there was a substantial amount of money being spent on security, very little was spent on rehabilitative programmes: a balance needed to be struck between security and rehabilitation.1929 Security problems are often related to corruption rather than infrastructure1930 and therefore the money is not being spent wisely. At overcrowded facilities there are few, if any, rehabilitation programmes or work opportunities.1931 Since it is effectively impossible to run rehabilitation programmes in overcrowded institutions, these issues have to be resolved before rehabilitation can become meaningful in South African prisons.1932 1925 Judicial inspectorate of prisons “Annual Report for the period 1 April 2007 to 31 March 2008” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013) 16, 20, 40. 1926 Judicial inspectorate of prisons “Annual Report for the period 1 April 2007 to 31 March 2008” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202007-2008.pdf > (accessed 28-04-2013) 17. 1927 Judicial inspectorate of prisons “Annual Report for the period 1 April 2008 to 31 March 2009” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 36. 1928 Judicial inspectorate of prisons “Annual Report for the period 1 April 2008 to 31 March 2009” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 53. 1929 Judicial inspectorate of prisons “Annual Report for the period 1 April 2008 to 31 March 2009” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 55, 56. 1930 281, 282, 283, 284, 288. 1931 Judicial inspectorate of prisons “Annual Report for the period 1 April 2008 to 31 March 2009” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 16. 1932 Judicial inspectorate of prisons “Annual Report for the period 1 April 2008 to 31 March 2009” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 21. 387 In his 2009/2010 report the inspecting judge noted that the majority of the approximately 114 000 sentenced prisoners in South Africa are not involved in any rehabilitation or work programmes, but are imprisoned in overcrowded cells for up to 23 hours per day.1933 Those imprisoned in the prisons with overcrowding in excess of 200% are also generally excluded from all rehabilitation and work programmes and kept in overcrowded cells for up to 23 hours per day.1934 A further element of arbitrariness is evident in that in some prisons, prisoners are allowed to spend a substantial part of the day outside the confines of their cells, performing work or engaged in rehabilitative or recreational activities, even if conditions involve overcrowding whereas in other prisons prisoners are, for the most part, obliged to spend up to 23 hours per day locked up in their cells thereby exacerbating the effects of overcrowding.1935 The inspecting judge therefore found that on average only between 10% and 15% of sentenced prisoners were involved in regular work or rehabilitation programmes.1936He also found that not enough was being done by the DCS in order to implement rehabilitative programmes.1937 In this year the inspecting judge received 17 762 complaints about the lack of rehabilitative programmes.1938 Furthermore, a two shift system was implemented that had a negative effect on staffing at operational levels in most prisons and this in turn 1933 Judicial inspectorate of prisons “Annual Report for the period 1 April 2009 to 31 March 2010” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 8. 1934 Judicial inspectorate of prisons “Annual Report for the period 1 April 2009 to 31 March 2010” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 13. 1935 Judicial inspectorate of prisons “Annual Report for the period 1 April 2009 to 31 March 2010” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 15. 1936 Judicial inspectorate of prisons “Annual Report for the period 1 April 2009 to 31 March 2010” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 23. 1937 Judicial inspectorate of prisons “Annual Report for the period 1 April 2009 to 31 March 2010” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 25. 1938 Judicial inspectorate of prisons “Annual Report for the period 1 April 2009 to 31 March 2010” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 17. 388 caused most recreational and rehabilitative programmes to be suspended.1939 Moreover in his 2010/2011 report the inspecting judge noted that this negative effect on rehabilitation programmes had not yet been resolved at most prisons.1940 The inspecting judge also found that the physical architecture of many of the prisons was not suitable to accommodate rehabilitation programmes and was more suited to simply warehousing prisoners.1941 Eighteen prisons were critically overcrowded by 200% or more and these conditions were not conducive to humane treatment or the rehabilitation of prisoners.1942 The inspecting judge received 25 831 complaints about the lack of rehabilitation programmes.1943 In his 2011/2012 report the inspecting judge noted that overcrowding could not be addressed by simply moving prisoners from crowded prisons to less crowded ones outside of the city. Various reasons were cited for this. Firstly, it was not practical for prisoners to receive visits at these smaller prisons because the visitors could not get there. Secondly, the smaller prisons often experience shortages of specialist staff such as nurses, social workers and educators. This in turn makes it impossible for the Department of Correctional Services to provide proper medical and other health care services. In addition the absence of specialist staff frustrates the implementation of rehabilitation programmes.1944 1939 Judicial inspectorate of prisons “Annual Report for the period 1 April 2009 to 31 March 2010” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20-2010.pdf > (accessed 28-04-2013) 38. 1940 Judicial inspectorate of prisons “Annual Report for the period 1 April 2010 to 31 March 2011” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 35. 1941 Judicial inspectorate of prisons “Annual Report for the period 1 April 2010 to 31 March 2011” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 35 6. 1942 Judicial inspectorate of prisons “Annual Report for the period 1 April 2010 to 31 March 2011” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 13. 1943 Judicial inspectorate of prisons “Annual Report for the period 1 April 2010 to 31 March 2011” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 33. 1944 Judicial inspectorate of prisons “Annual Report for the period 1 April 2011 to 31 March 2012” Judicial Inspectorate for Correctional Services 389 Problems with staffing issues persist and many prisoners are not permitted to participate in rehabilatory programmes. For example, in one incident insufficient staff at the Krugersdorp prison resulted in only one official being on duty when a fire broke out in a cell. This, combined with poor infrastructure, resulted in three juveniles being burnt to death in their cell. There were not enough staff to help and the door which was made of the incorrect material was alight.1945 Again, this demonstrates the arbitrariness of this type of punishment. Some institutions are older and the infrastructure more dangerous whilst others are better staffed. These differences affect rehabilitation and can also represent the difference between life and death. In this year the inspecting judge received 21 582 complaints about the lack of rehabilitation programmes.1946 In Ehrlich v Minister Of Correctional Services and others1947 the court found, amongst others, that the prison had not implemented rehabilitation programmes, nor had it produced the sentencing plan that preceded the rehabilitative intervention. Section 38 of the Correctional Services Act1948 provides that all prisoners must be assessed according to their needs; then a correctional sentence plan must be completed and implemented. The applicant stated in his affidavit that offenders must comply with the terms of their sentence plans, which includes participation in various rehabilitative programmes, before parole is granted. The prison did not have any sentence plans and therefore no prisoners qualified for parole. The court remarked that this might be one explanation for the prison in question being 170% full. 1945 Judicial inspectorate of prisons “Annual Report for the period 1 April 2011 to 31 March 2012” Judicial Inspectorate for Correctional Services 390 In terms of section 41 of the Correctional Services Act1949 the Department of Correctional Services must provide access to a full a range of programmes and activities including needs-based programmes, as far as is practicable, to meet the educational and training needs of sentenced offenders. The prison in question provided no such programmes. The applicant had previously assisted, in another prison, with the implementation such need-based programmes. He also proposed his own programmes. The prison was not prepared to allow him to implement these programmes. He was motivated by the unfortunate reality of prisoners lazing about, smoking dagga and becoming involved in gangsterism during their incarceration. Furthermore, food was not being served regularly. The court then ordered that the prison serve properly prepared food at intervals of not less than four and a half hours and not more than six and a half hours: however an interval of not more than fourteen hours between the evening meal and breakfast was permissible. This was in terms of a previous order and in terms of section 8(5) of the Correctional Services Act. The prison had ignored a previous order to this effect. The court also ordered that sentencing plans and rehabilitation plans be introduced. 7. CONCLUSION Firstly, it can be concluded that imprisonment in South Africa is an extremely arbitrary punishment. For example, in S v Williams1950 the court considered the fact that the intensity of the punishment was dependent upon the person who was administering corporal punishment, as opposed to the court which merely directed how many blows were to be struck: this is a very important factor in finding the type of punishment to be arbitrary.1951 When a court sentences an offender to prison it directs how many years the prisoner is to remain in prison. The experience of the individual prisoner is however similarly completely arbitrary. The treatment a prisoner receives will be dependent upon which crime he committed, which prison he goes to, who the warder is, who his cell mates are, how physically 1949 Ibid. 1950 S v Williams supra. 1951 S v Williams supra paras 45 and 89. 391 strong he is in his ability to fight for his survival, how attractive or young he may be, whether gangs are rife, whether there are any rehabilitative programmes in the prison, what the level of staffing and health care is - and numerous other similar variables. If the prisoner is in a prison where gangs are rife, such as Pollsmoor, he may be gang-raped and contract HIV/AIDS for offending a gang member, or he may be assaulted. If he is young and attractive and the warder is corrupt he may be sold as a sex slave. If the prison keeps him in lock-up 23 hours a day because of understaffing and is unable to provide rehabilitative courses, such as the case is in Krugersdorp prison, then his prospects for parole are very remote.1952 In these circumstances the prisoner would be serving a sentence equivalent to double or treble what the court ordered him to serve. This is in terms of the rule of thumb approved in the matters of S v Brophy1953 and S v Vilikazi.1954 If the warders in the prison are particularly corrupt, as in Johannesburg prison, the prisoner may have to pay in order to acquire proper food or else live on a reduced diet and the warders may rob him or sexually abuse him. If he offends a warder then as punishment he may be sent to a super-maximum prison facility such as C-Max in Pretoria. Imprisonment in these conditions constitutes a form of torture.1955 Secondly, there are some prisoners in South Africa that experience conditions of detention that violate the prohibition against cruel, inhuman or degrading treatment or punishment. A finding of this nature is a value judgment, based on a particular set of facts, which has to be made by a court. Given the arbitrariness of imprisonment in South Africa, it is not possible to make a general prediction: however there are strong indications that there are facilities in South Africa where the treatment falls short of the requirement that conditions of imprisonment must be humane. This would include severely overcrowded conditions, poor health care facilities, gang-related violence and corrupt officials. 1952 Ehrlich v Minister Of Correctional Services and Others supra. 1953 2007 (2) SACR 56 (W). 1954 2000 (1) SACR 140 (W). 1955 Jali Report 365. 392 The third general conclusion here is related to the conclusion reached in the chapter dealing with historical background, namely, that historians of prisons have observed specific trends in the history of imprisonment. For example: firstly, prison authorities tend to go through phases of being enamoured with the prospect of rehabilitation of prisoners and then to despair of the possibility1956; secondly, the various humanitarian ideals often act as an impetus for reforms that result in forms of punishment that are grossly disproportionate to the crimes committed by the prisoners1957; and thirdly, prisons, by their very nature in modern times, tend to be characterized by poor hygiene, poor health care, warder brutality, enforced idleness, lack of rehabilitation programs, a concentration and spread of communicable diseases, disorder, the failure to reform offenders, criminogenesis, gangs, aging infrastructure, architecture designed around a punitive philosophy and overcrowding.1958 This exposition of systemic problems has illustrated that there are many instances in South Africa currently where these kinds of problems persist. However the difficulty is that these types of conditions cannot easily be reconciled with a human rights culture. What is clear is that these unacceptable conditions of detention are often associated and caused by overcrowding. This in turn is not a function of the crime rate but rather of policy responses to crime, such as the decision to employ imprisonment as a primary form of punishment, to employ minimum sentence legislation and restrictive bail conditions. A recognition that generally prisons do not rehabilitate offenders but instead often subject prisoners to conditions of incarceration that are criminogenic and inhumane has led to two broad policy responses. The first is the American response which is to abandon rehabilitation as a sentencing guideline, although prison authorities themselves may still attempt to rehabilitate. The second is the Canadian and 1956 Mc Conville “The Victorian Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 115 145. 1957 Mc Conville “The Victorian Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 115 148. 1958 Rothman “Perfecting the Prison” in Morris and Rothman (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society 100 112. 393 European response and that is to regard prison as a scarce resource and to use it as a last resort. This in turn leads to less crowding and a greater likelihood of effective rehabilitation as more resources, both human and material, are available for rehabilitation. The next section will be the conclusion in which possible solutions to some of the systemic problems will be considered. 394 CHAPTER 7 Restorative Justice 1. Introduction ...... 395 2. The details of the New Zealand and juvenile justice system ...... 396 3. The traditional Xhosa model ...... 400 4. The South African Child Justice Act ...... 401 5. Restorative justice, the Xhosa model and reductionism ...... 403 6. Conclusion ...... 409 1 Introduction As will be discussed in the concluding chapter below one approach for addressing problems in prisons is the European principle of reductionism. It is submitted, that an approach that will be consistent with South African law - and that will give effect to the concept of reductionism - is restorative justice which is consistent with the constitutional-norm of ubuntu. Furthermore, the objectives of restorative justice include the following: restoration of community order and the repair of damaged relationships; denunciation of criminal behaviour as unacceptable; the support of victims, including their participation in the process of justice, so as to address their needs; encouragement of all parties ( and the offender in particular) to take responsibility for the harm that has been caused; identification of restorative outcomes and the combating of recidivism by encouraging change in individual offenders and making an effort to facilitate their reintegration into the community.1959 These objectives have also been identified as the goals of restorative justice in South African law in terms of section 51 of the Child Justice Act.1960 These objectives are in accord with the four purposes of punishment identified above. Restorative Justice rests on three basic assumptions: crime is a violation of people and of relationships which creates obligations the central one of which is to put those wrongs right. This in turn translates into five broad principles, i.e. restorative justice turns the focus of attention onto the harms and consequent needs of the victims, communities and offenders; the resultant obligations rest not only with the offenders 1959 United Nations Office on Drugs And Crime Handbook on Restorative Justice Programmes (2006) 10. 1960 75 of 2008. 395 but also with the broader community; the process that follows the offence is inclusive and collaborative; all those with a legitimate stake in the situation, including victims, offenders, community members and society should be involved in the said process; and finally the wrong following the offence should be put right.1961 One example of this type of process is that which is found in the Maori restorative tradition. The New Zealand justice system has been selected for research because it has incorporated restorative justice into the legal system arguably more extensively than any other jurisdiction.1962 2 THE DETAILS OF THE NEW ZEALAND JUVENILE JUSTICE SYSTEM The purpose of justice in the Maori community is that of restoration and healing for all who were affected by the crime: justice is therefore not viewed as an antagonistic forum. The process involves hearing and helping the victim, healing the family and helping and healing the perpetrator.1963 The family of the offender is obliged to discover the truth of the actions of the offender before the process commences and for this to work the offender must admit his wrongdoing. The families of the offender and of the victim then attend a meeting with the elders. At this meeting the family of the offender and the offender himself are then shamed. The offender is then obliged to perform a community function, such as repairing the meeting house. After this there is an act of reconciliation between the two families, such as the victim’s family cooking a meal for the offender’s family whilst he is working on the communal meeting area.1964 This alternative approach to criminal justice has given rise to a process known as Victim Offender Mediation which creates encounters between victims and offenders which are facilitated by mediators. In New Zealand the juvenile justice legislation went further and created Family Group Conferences which are also facilitated encounters but are composed of a larger circle of participants, including victims, 1961 Zehr “Doing Justice, Healing Trauma – The Role of Restorative Justice in Peacebuilding” (2008) Vol 1 No 1 South Asian Journal of Peacebuilding 1 4. 1962 Takagaki and Shank “Critique of Restorative Justice” (2004) Vol 31 No 3 Social Justice 147 148. 1963 Consedine Restorative Justice: Healing the Effects of Crime (1995) 82. 1964 Takagaki and Shank “Critique of Restorative Justice” 147 149. 396 offenders, family members, the police and other interested parties. These Family Group Conferences are central to the juvenile justice system in New Zealand1965 which was created by the Children, Young Persons and Their Families Act.1966 This system seeks to deal with child offenders who are defined as boys and girls under the age of 14, and young persons, who are defined as being between 14 and 16. Family Group Conferences seek to make necessary decisions, recommendations and plans to deal with the case of the offending child or young person. They function at two important phases of the criminal justice process: firstly in order to determine whether prosecution can be avoided and secondly at a post-charge phase to determine how to deal with cases where the offender has admitted the offense or where it has been proved in the Youth Court.1967 Section 6 of the Act recognizes that where children or young persons commit offences they are to be held accountable, and encouraged to accept responsibility, for their behaviour. They are further to be dealt with in ways that acknowledge their needs and that will give them the opportunity to develop in responsible, beneficial, and socially acceptable ways. The Act further provides that criminal proceedings should not be instituted against a child or young person unless the public interest requires it and then only if there is not an alternative means of dealing with the matter. A child or young person who commits an offence should be kept in the community so far as that is practicable and consonant with the need to ensure the safety of the public. When dealing with an offender who is a young person or a child victims should be encouraged to participate in the processes of Family Group Conferencing created under the Act. Any measures for dealing with offending children or young persons should be designed to strengthen their family, to foster their ability to develop their own means of dealing with their offending children. Furthermore, any sanction should aim to maintain and promote the development of the child or young person within his family 1965 Zehr “Doing Justice, Healing Trauma – The Role of Restorative Justice in Peacebuilding” 1 2. 1966 24 of 1989. 1967 Ss 20 to 38. 397 and family group: furthermore the least restrictive form of censure should be used.1968 Where children are prosecuted this occurs in a specialised Youth Court, which is separate from the criminal courts and family courts.1969 As stated above the Act also employs a process called Family Group Conferencing which seeks to facilitate 1970 reconciliation between victim and offender in the Maori tradition. Family Group Conferencing must be convened in any of six types of circumstances: firstly, when an enforcement officer believes that the child is in need of care or protection; secondly, where a young person is alleged to have committed an offence, and has not been arrested, then he may be referred to Family Group Conferencing before being charged; thirdly, where the young person has been charged but denies the offence (here the court may order that it be referred to Family Group Conferencing); fourthly, when a young person does not deny the offense then the court must direct that a Family Group Conference be called; fifthly, where the crime of which the young person has been accused is proved before the Youth Court and there has been no previous opportunity to consider the most appropriate way to deal with the young offender then a Family Group Conference must be called. Finally, a Youth Court may direct that a Family Group Conference be established at any stage during the proceedings.1971 Those who participate in the Family Group Conference are the young person, his legal representative, members of the family or family group and whomever they invite, the victim and those whom he invites to support him, the police, the Youth Justice Coordinator and a social worker.1972 Moreover information that arises during the course of a Family Group Conference may not be published.1973 1968 S 208. 1969 S 272. 1970 S 247. 1971 Ss 241 – 281B. 1972 S 251. 1973 Ss 37, 38 and 271. 398 A Family Group Conference does not have a prescribed format or procedure and participants decide upon the procedure to be employed.1974 However, there is a general process that includes a prayer, an explanation of the procedure by the Youth Justice Coordinator or facilitator, a presentation of the facts of the offence by the police, an opportunity for the offender to comment on the police statement, a formal admission by the young person, an opportunity for the victim to make a presentation if the offence is admitted, a general discussion of possible outcomes, a discussion of options among the offender's family, a negotiation and the formulation of a plan, a response or outcome by the participants, agreement from participants, a recording of the agreed plan - and finally, closure of the meeting.1975 The Act provides that the Family Group Conference may make any of the following recommendations: a formal police caution be given to the offending child or young person; an application be made for an order that the offender is in need of care or protection; appropriate penalties be imposed on the offender; and the offender make reparation to any victim of the offence.1976 Enforcement agencies are to comply with decisions, recommendations, and plans of the Family Group Conference unless it is clearly impracticable or clearly inconsistent with the principles of restorative justice. It is furthermore the duty of the relevant agency to give effect to that decision, recommendation, or plan of the Family Group Conference by taking such action and steps as are necessary and appropriate in the circumstances of the particular case.1977 If the plan agreed to at the Family Group Conference is successfully completed by a young person then the Youth Court is empowered to discharge the offender: the charge is then deemed never to have been laid. However, the Youth Court, even after granting a discharge, still has the power to impose additional requirements on the young person, for example, to pay money towards the cost of the prosecution or pay reparations to the victim. These additional impositions are the same as those 1974 S 256. 1975 The New Zealand Ministry of Justice “The New Zealand Criminal Justice System And Restoration” 399 that can be employed in a guilty finding by the Youth Court. These are grouped in seven levels of severity with a prescribed penalty for each.1978 If no agreement can be reached, then the Family Group Conference adjourns the matter and it is referred back to the appropriate enforcement agency, or the Youth Court, for determination.1979 Although there is an obligation on the part of the care and protection coordinator to convene a Family Group Conference, participation cannot be compelled. The voluntary aspect is important in restorative justice since this creates a sense of inclusion and responsibility. This is consistent with the view that restorative justice presents an alternative justice framework to the conventional western view of law breaking, guilt and punishment.1980 3 THE TRADITIONAL XHOSA MODEL It is submitted that the model employed by the New Zealand legislation, which is based upon Maori practice, is consistent with that of the traditional Xhosa model of justice. The traditional Xhosa model was that there were broadly two ways in which offences between families were settled. The first was direct negotiations between representatives of the two families concerned. The offence was regarded as a family matter in that the representative of the victim’s family would approach the head of the family of the offender and formally complain about the offence. He would then demand compensation and attempt to settle the matter. If the matter was resolved by the parties then that would end the matter. However, where the matter could not be resolved between the parties then it would be referred to a court composed of a chief and his councilors who would hear the case.1981 In the African tradition a court composed of a chief and his councilors was not a hearing in the traditional western manner but rather a meeting where the parties would discuss the matter until a decision or consensus was reached. This means of 1978 Ss 282, 283 and 284. 1979 S 264. 1980 Zehr “Doing Justice, Healing Trauma – The Role of Restorative Justice in Peacebuilding” 1 3. 1981 Thornberry “Defining Crime through Punishment: Sexual Assault in the Eastern Cape c.1835– 1900” 1 8. 400 decision-making has been closely tied to the concept of ubuntu. The process is one which seeks consensus and mutual understanding. Such a process is aimed at maintaining harmony. This is because it recognizes the interconnectedness of human beings. Those who can participate in the process extend beyond the immediate parties involved in the dispute and include members of the community. Thus, a good leader would recognize the wholeness of the group and the interconnectedness of the persons in the group. He would then listen to all the members within the group and find points of consensus.1982 These are the precepts of African communitarianism, namely, participation and consensus.1983 The nature of the remedy for the wrong or offense was generally the transfer of cattle. This transfer served multiple purposes. Firstly, it was a form of retribution against the offender, as compensation for loss suffered by the victim and his family. However, this was also a public act which demonstrated that the offender had wronged the victim. There was thus a shaming element to the transfer of the cattle. Some of the cattle might be ritually slaughtered. The effect of this would be to restore social and spiritual harmony within the group.1984 It is thus submitted that the concept of restorative justice traditionally formed part of Xhosa customary law and still forms part of South African law through the Child Justice Act. 4 THE SOUTH AFRICAN CHILD JUSTICE ACT The Child Justice Act1985 allows for a diversion system to be created for children between ten and eighteen years old1986 who are dolus capax. Child offenders below the age of ten are deemed doli incapax and are to receive assistance while children between ten and fourteen are deemed to be doli incapax unless there is good reason 1982 Nassbaum “Ubuntu: Reflections of a South African on Our Common Humanity” (2003) Vol 4 No 4 Reflections 21 22. 1983 Choudree “Traditions of Conflict Resolution in South Africa” (1999) 1(1) African Journal of Conflict Resolution 9 23. 1984 Thornberry “Defining Crime through Punishment: Sexual Assault in the Eastern Cape c.1835– 1900” 1 7. 1985 75 of 2008. 1986 See definition of child in the Child Justice Act. 401 for belief to the contrary.1987 The Act provides that a child over 10 years accused of committing a crime, must be assessed by a probation officer.1988 Where a child who has criminal capacity is prosecuted, an assessment may be dispensed with if it is in the best interests of the child.1989 After the aforementioned assessment the probation officer is required to draft a report for the prosecution. This may include a recommendation for diversion.1990 A prosecutor may direct, in certain circumstances, that a child be diverted.1991 If the matter is not withdrawn or diverted then it proceeds from the prosecutor to a preliminary hearing. This is an informal pre- trial procedure which is inquisitorial in nature and which may be held in a court or any other suitable place.1992 The preliminary enquiry must be attended the inquiry magistrate, the prosecutor, the child, the child’s parent(s) or an appropriate adult or guardian and the probation officer.1993 At the preliminary enquiry the court may order that the matter be diverted or make an order that the matter be referred to a Child Justice Court in terms of section 47(9)(c) to be dealt with in terms of Chapter 9.1994 If the matter is referred to a Child Justice Court then it may, if satisfied, convict the child of an offence or, at any time before the conclusion of the case for the prosecution, make an order for diversion in accordance with the provisions of section 52(5).1995 Depending on the nature of the offence various types of diversion are contemplated in the Act. These diversions include - but are not limited to - an oral or written apology to a specified person or persons or institution; symbolic restitution to a specified person, persons, group of persons or community, charity or welfare organisation or institution; restitution of a specified object to a specified victim or victims of the alleged offence where the object concerned can be returned or 1987 S 11. 1988 S 34. 1989 Ss 41(3) and 47(5). 1990 S 40. 1991 S 40. 1992 S 43. 1993 S 44. 1994 S 49. 1995 S 67. 402 restored; provision of some service or benefit by the child to a specified victim or victims; and payment of compensation to a specified person, persons, group of persons or community, charity or welfare organisation or institution where the child, or his or her family, is able to afford this.1996 In terms of section 53(7) a magistrate at a preliminary enquiry or Child Justice Court may order a child to appear at a Family Group Conference in terms of section 61 or a Victim-Offender Mediation in terms of section 62. If the matter is not resolved at a pre-trial phase and the child is prosecuted and found guilty by a Child Justice Court1997 of an offence then one of the sentences which may be imposed by a Child Justice Court is to refer the matter to a Family Group Conference in terms of section 61 or for Victim-Offender Mediation in terms of section 62 or to any other restorative justice process. In terms of the Act, a Family Group Conference is an informal procedure which is intended to bring a child who is alleged to have committed an offence and the victim together, supported by their families and other appropriate persons: a plan is then developed as to how the child will redress the effects of the offence. A Family Group Conference may only take place if both the victim and the child consent.1998 In terms of the Act, Victim-Offender Mediation means an informal procedure which is intended to bring a child who is alleged to have committed an offence and the victim together. A plan is then developed as to how the child will redress the effects of the offence. A victim-offender mediation may only take place if both the victim and the child consent.1999 5 RESTORATIVE JUSTICE, THE XHOSA MODEL AND REDUCTIONISM It is therefore submitted that one possible model for reducing the use of imprisonment as a type of punishment could be restorative justice. This could be 1996 S 53. 1997 Ch 9. 1998 S 61. 1999 S 62. 403 done by employing a model similar to that of the existing South African juvenile justice model but with the specific emphasis on the centrality of the Family Group Conference to the process. This would be similar to the New Zealand juvenile justice model. It would incorporate elements that are more familiar to the South African environment. The Family Group Conference is consistent with the Xhosa model of punishment and with the constitutional-norm of ubuntu. There are several restorative justice mechanisms that can be employed. Two of these are employed in the South African legal system via the Child Justice Act, namely, Family Group Conferences2000 and Victim-Offender Mediation.2001 The other models are sentencing2002 and peacemaking circles, reparative probation and community boards and panels.2003 It is submitted that although any of these models could be employed in the South African context, the first choice should be the Family Group Conference because this is consistent with South African culture: only where this is not possible should one of the other models be employed. In developing a model of restorative justice there are a several important factors to be taken into account. Firstly, the harms and consequent needs of the victims,2004 communities and offenders need to be identified. Two mechanisms can be employed for this, for example via legislation geared specifically to address the needs of victims of crime. In New Zealand this is achieved through the mechanism of 2005 the Victims’ Rights Act the purpose of which is to improve provisions for the treatment and rights of victims of offences.2006 Another mechanism could involve restoration of offenders and victims facilitated by employing various mechanisms of restorative justice. 2000 S 61. 2001 S 62. 2002 Latimer, Dowden and Muise “The Effectiveness Of Restorative Justice Practices: A Meta- Analysis” (2005) Vol 85 No 2 The Prison Journal 127 128. 2003 United Nations Office on Drugs and Crime Handbook on Restorative Justice Programmes (2006) 10. 2004 Zehr “Doing Justice, Healing Trauma – The Role of Restorative Justice in Peacebuilding” 1 4. 2005 39 of 2002. 2006 S 3. 404 Secondly, in order to identify the obligations that result from those harms for both the victim and society, a facilitated group with representatives and supporters from the various parties could be created. This would rely upon the centrality of the Family Group Conference. Thirdly, in order to ensure that the process is inclusive and collaborative, participation by the various members must be voluntary. If this process breaks down then the matter can once more be referred back to the normal criminal justice process. Fourthly, by specifically including family members, family representatives and respected elders from within the larger community the process can incorporate traditional elements. Fifthly some plan or process which can be enforced should be agreed upon by all the parties. In traditional Xhosa culture this would be by an exchange of cattle. As noted above, the exchange of cattle was not only a fine but had other important social elements to it. For example, it had a distinct public element which would contain a shaming component. Furthermore, the sacrificial slaughtering of some of the cattle would have a restorative spiritual element. By involving a punishment that affected the whole family, that is, giving up of some of the family cattle, it shared the responsibility of the offence with the family and the community. It is submitted that something akin to a fining system with a public shaming element, as well as a communal restorative element, such as a donation to a charity or a community service, would be necessary. This is also consistent with the Child Justice Act.2007 It is submitted furthermore that restorative justice, as a means of punishment, is more easily justified as a form of punishment in terms of section 36 of the Constitution than is imprisonment. This is because the limitation of the right is less onerous than in the case of imprisonment and also it has been shown to be more effective in reducing recidivism. This means that it is more effective as a means of rehabilitation.2008 2007 S 53. 2008 Bergseth and Bouffard “The Long-Term Impact of Restorative Justice Programming For Juvenile Offenders” (2007) Journal of Criminal Justice 35 433, 434, 448. Employing multivariate analyses it was found that juveniles referred to restorative justice programming fared better than those referred to traditional juvenile court processing on each outcome 405 Restorative justice in South Africa currently only applies to children up to and including the sentencing phase.2009 What is being proposed is that for certain classes of offence restorative justice be expanded as a more generalized strategy. Thus, it is respectfully submitted that restorative justice may also be applied to adult offenders as well at the post sentence and pre-reintegration phase of punishment and also at the post-confinement reintegration phases. It is further submitted that it would be desirable to employ diversion as a front-door strategy but to expand its use to include non-youthful offenders for certain classes of offences. It may also be used as a back-door strategy for persons convicted of offences in several ways. Firstly, it can be a factor to be considered at sentencing. Secondly, the Correctional Services Act could be amended so that restorative justice can be considered as an important factor when deciding whether or not to apply correctional supervision provisions in the Criminal Procedure Act.2010 Thirdly, it can be used as an important consideration when granting parole. It could also potentially assist with the reduction of recidivism in a post-confinement reintegration phase thereby contributing to the reductionist strategy. Adult offenders may be permitted to participate in restorative justice diversion programmes. The benefits of such a programme would be similar to those outlined in section 51 of the Child Justice Act but with an emphasis upon promotion of reintegration, and an opportunity for the victim to express his views on the impact of the offence and so to encourage the promotion of reconciliation between the offender and the person or community affected by the offence. In the case of pre-trial diversion the prevention of stigmatization and the prevention of the adverse consequences flowing from that are important considerations. Diversion however, would be limited to certain classes of offence. measure. These measures were prevalence, number of later contacts, seriousness of later behavior and time to first re-offense. 2009 S 73. 2010 Ss 276(1)(h), 276(1)(i), 276A(3)(a)(ii), 276A(3)(e)(ii), 286B(4)(b)(ii), 286B(5)(b)(iii), 287(4)(a), 287(4)(b), 297(1)(a)(i)(ccA), 297(1)(b) or 297(4) of the Criminal Procedure Act. 406 In certain jurisdictions such adult restorative justice projects are implemented. For example, the categories of offences that are currently being considered for restorative justice diversion programmes in Nova Scotia, Canada include the following: certain minor statutory, property and disorderly conduct offences; minor assaults not resulting in bodily injury and certain other offences where the amounts involved are relatively minor.2011 It is submitted that a similar regime could be established in South Africa. This would be similar to schedule 1 of the Child Justice Act. This categorization would primarily be important in the case of a complete diversion of the matter, as opposed to the application of the principles of restorative justice in a more generalised fashion. Furthermore, where a person has already been sentenced it is proposed that in addition to any punishment that the court chooses to impose, it can reduce the punitive element of the sentence where the offender and the victim have engaged in a process involving restorative justice. The court may also order, in the case of certain types of offences, that the sentence of the court must involve a restorative process alone or in conjunction with other penalties. For example, in terms of section 8(j) of the New Zealand Sentencing Act,2012 a sentencing court must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to a particular case. This, it is submitted, is an effective backdoor strategy by reducing the period of sentence which can be applied in South Africa. A final back-door proposal is that where an offender is being considered for parole in terms of Chapter 7 of the Correctional Services Act his involvement in a process of restorative justice be considered as an important factor in deciding whether to grant or refuse the parole application.2013 This approach has been applied in New Zealand 2011 King “Integrated Adult Restorative Justice Pilot Project” John Howard Restorative Justice Program 2011< http://ns.johnhoward.ca/pdf/IARJPP%206%20final.pdf> (accessed 29-08-2013). 2012 2002. 2013 In terms of s 52 of the Correctional Services Act when community corrections are ordered, a court, the Correctional Supervision and Parole Board, the National Commissioner or other body which has the statutory authority to do so, may, stipulate that the person concerned does community service in order to facilitate restoration of the relationship between the sentenced offenders and the community. This however, does not allow for a restorative process per se. 407 in the Parole Act.2014 In terms of section 33 it may be a condition of parole that the offender engage in a process of restorative justice with the victim and furthermore, in terms of section 43 the parole board is to consider whether the offender has engaged in any restorative justice processes and to this end it must consider any reports arising from those processes. The use of restorative justice at all stages of the criminal process has been confirmed in Article 6 of the United Nations Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters.2015 There would be several important considerations involved with the implementation of any such programme. These would include firstly that fundamental procedural safeguards should be applied to restorative justice programmes. This would include both parties’ rights to legal advice before and after the restorative process: in addition, before agreeing to participate in restorative processes the parties should be fully informed of their rights, the nature of the process and the possible consequences of their decision and finally, neither the victim nor the offender should be induced by unfair means to participate in restorative processes or outcomes.2016 Secondly, any discussions in restorative processes should be confidential and should not be disclosed subsequently, except with the agreement of the parties.2017 Thirdly, that judicial discharges based on agreements arising out of restorative justice programmes should have the same status as judicial decisions or judgments and should preclude prosecution in respect of the same facts.2018 Fourthly, if no agreement can be made between the parties, the case should be referred back to the criminal justice authorities and a decision as to how to proceed should be taken without delay. If there is a lack of agreement this fact may not be used as 2014 2002. 2015 ECOSOC Res. 2000/14, U.N. Doc. E/2000/INF/2/Add.2 at 35 (2000). 2016 Art 12 Basic Principles on the Use of Restorative Justice Programmes In Criminal Matters, ECOSOC Res. 2000/14, U.N. Doc. E/2000/INF/2/Add.2 at 35 (2000). 2017 Art 13 Basic Principles on the Use of Restorative Justice Programmes In Criminal Matters, ECOSOC Res. 2000/14, U.N. Doc. E/2000/INF/2/Add.2 at 35 (2000). 2018 Art 14 Basic Principles on the Use of Restorative Justice Programmes In Criminal Matters, ECOSOC Res. 2000/14, U.N. Doc. E/2000/INF/2/Add.2 at 35 (2000). 408 justification for a more severe sentence in subsequent criminal justice proceedings.2019 Finally, if there is a failure to implement an agreement made in the course of a restorative process, the matter should be referred back to the restorative programme or to the criminal justice authorities and a decision as to how to proceed should be taken without delay. However failure to implement the agreement may not be used as justification for a more severe sentence in subsequent criminal justice proceedings.2020 6 Conclusion In the concluding chapter below various possible solutions will be discussed for the problems that have been identified in this thesis. One approach that may assist in addressing the tension that exists between the reality of prisons on the one hand and the demands of a human rights based legal system on the other is that of reductionism and one possible solution within that context and which is consistent with that of South African law, it is submitted, is restorative justice. 2019 Art 15 Basic Principles on the Use of Restorative Justice Programmes In Criminal Matters, ECOSOC Res. 2000/14, U.N. Doc. E/2000/INF/2/Add.2 at 35 (2000). 2020 Art 16 Basic Principles on the Use of Restorative Justice Programmes In Criminal Matters, ECOSOC Res. 2000/14, U.N. Doc. E/2000/INF/2/Add.2 at 35 (2000). 409 CHAPTER 8 CONCLUSION 1. Introduction ...... 411 2. The reductionist and abolitionist arguments ...... 413 2.1 Abolitionist argument ...... 413 2.1.1 Limitation of rights ...... 413 2.1.2 Imprisonment is a cruel, inhuman or degrading treatment or punishment per se ...... 414 2.1.3 Imprisonment is not a cruel, inhuman or degrading punishment or treatment per se ...... 417 2.2 The justification determination ...... 417 2.3 The onus ...... 419 2.4 The determination ...... 419 2.4.1 Legitimacy ...... 420 2.4.1.1 Retribution...... 420 2.4.1.2 Rehabilitation ...... 421 2.4.1.3 Deterrence ...... 424 2.4.1.4 Prevention ...... 426 2.4.2 Proportionality ...... 426 2.4.3 Other considerations ...... 429 2.5 Reductionist argument ...... 430 3. Proposed remedies ...... 439 3.1 Introduction ...... 439 3.2 Restorative justice ...... 440 3.3 Special masters...... 441 3.4 Proposed model for legislative amendments ...... 448 3.4.1 Arbitrariness ...... 448 3.4.2 Current mechanisms for enforcement of prisoner rights ...... 450 3.4.2.1 The complaint system ...... 450 3.4.2.2 Prisoners and the court system ...... 453 3.4.3 Specialised courts ...... 455 3.4.4 Right to legal redress ...... 458 3.4.5 Beneficent state principle ...... 459 3.4.6 Proposed expansion of powers of the existing protection ...... 460 3.4.6.1 Proposed solution procedure ...... 460 3.4.6.2 Limitations that do not violate the prohibition on torture or cruel, inhuman or degrading treatment or punishment nor do they frustrate the purposes of punishment ...... 461 3.4.6.3 Limitations that do not violate the prohibition on torture or cruel, inhuman or degrading treatment or punishment but do frustrate the purposes of punishment ...... 463 3.4.6.4 Limitations that violate the prohibition on torture or cruel, inhuman or degrading treatment or punishment ...... 465 3.4.6.5 Prisoner protector ...... 465 3.4.6.6 Powers of the various bodies...... 468 3.4.6.6.1 Independent prisoner visitor ...... 468 3.4.6.6.2 The visitor’s committee ...... 469 3.4.6.6.3 Office of the prisoner protector ...... 470 3.4.6.6.4 The office of the inspecting judge ...... 471 4. Conclusion ...... 472 410 1. INTRODUCTION This concluding chapter will be divided into two broad discussions. The first will discuss the reductionist and abolitionist responses to the failure of prisons to realize the purposes for which they are employed. The second will discuss potential solutions to the challenges created by the tension between conditions in prison and the rights of prisoners to be treated in a humane manner as determined in the Constitution. In the discussion regarding the reductionist and abolitionist responses to the failures of prisons the framework created by the Constitutional Court decisions of S v Makwanyane2021 and S v Williams and Others2022 will be relied upon. This framework will however also be of importance in the discussion regarding potential solutions to the challenges created by the tension between the demands of a human rights based legal system and the conditions currently found in prisons. It will be submitted that the importance of those two judgments for prison law are threefold. Firstly, where there are limitations of the fundamental rights of prisoners these must not frustrate the purposes of punishment. If they do they are not justifiable and should be therefore be declared unconstitutional. Secondly, imprisonment as a “type of punishment” may be found to be unconstitutional. However there are several qualifications to this submission. This may apply to situations where the state has demonstrated a clear inability to provide conditions of detention, generally, that do not violate the prohibition on cruel, inhuman and degrading treatment or punishment. It may also apply where there are systemic problems such as high levels of overcrowding, failure to provide proper health services, an inability to properly examine and treat prisoners with infectious diseases or to segregate those prisoners, together with other conditions similar to those identified in the matter of Brown v Plata.2023 The condemnation of the court will probably not result in declaring imprisonment being prohibited completely, as was the 2021 1995 (6) BCLR 665 (CC). 2022 1995 (3) SA 632 (CC). 2023 (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2-03-2013). 411 case with corporal punishment of minors, but will demand a remedy that changes the conditions of detention such as the imposition of a population cap. If it were to be a total condemnation then this would support the abolitionist argument. Thirdly, since research has shown2024 that prisons do generally not satisfy the proper purposes of punishment and furthermore since there is an awareness of the detrimental effects of imprisonment, this has led to the abolitionist and reductionist approaches to imprisonment as a type of punishment.2025 Reductionists argue for a reduction of the overall prison population by proposing various strategies that limit the number of people who go to prison and the length of the sentence that is served.2026 In the discussion regarding potential solutions to the challenges created by the demands of a human rights based legal system and the conditions currently found in prisons, a holistic set of solutions will be proposed. The first proposed solution will consider the reductionist argument and the possibilities created by the practices of restorative justice. In this regard particular attention will be given to the New Zealand model and also to traditional Xhosa responses to crime. The second proposed solution will consider the possible judicial remedies to the problems of enforcing prisoner rights as were demonstrated in the section on systemic problems.2027 The argument proposed is that the courts may be required to appoint a skilled professional who is an officer of the court to manage a prison or prison system. Finally, it will be argued that a specialized structure needs to be created that can address disputes concerning prisoner rights. This will be in the form of amendments to the Correctional Services Act. 2024 See Ch 5 above. 2025 Van Zyl Smit and Snacken Principles of European Prison Law And Policy Penology and Human Rights 20. 2026 Ibid. 2027 Vida supra. 412 2. THE REDUCTIONIST AND ABOLITIONIST ARGUMENTS 2.1 ABOLITIONIST ARGUMENT There are two “types of punishment” case in our law and these are found in S v Makwanyane2028 and S v Williams and Others.2029 The former involved the constitutionality of the imposition of the death sentence for non-treasonable offences and the latter involved the constitutionality of corporal punishment for juveniles. The importance of these cases for this study is that they provide a means for determining whether or not a particular limitation of a fundamental right is justifiable. These matters were decided under the interim Constitution2030 which contained a substantially similar general limitation clause2031 to that2032 existing in the current Constitution (except that it imposed an additional requirement). This additional requirement ruled that the limitation should not negate the essential content of the right in certain instances. This requirement does not appear in the current Constitution. In both matters the court adopted the same two-stage approach when assessing a limitation of rights. Firstly, a broad rather than a narrow interpretation is given to the fundamental rights enshrined in the Bill of Rights and secondly, limitations have to be justified through the application of a justification clause.2033 2.1.1 LIMITATION OF RIGHTS The first step is to determine whether there has been a violation or limitation of a right contained in the Bill of Rights. This determination requires the court to adopt a broad, rather than a narrow interpretation of the rights contained in the Bill. The second step, should it become necessary, is to determine whether this limitation is justified. 2028 1995 (6) BCLR 665 (CC). 2029 1995 (3) SA 632 (CC). 2030 Act 200 of 1993. 2031 S 33. 2032 S 36. 2033 S v Makwanyane supra par 100; S v Williams supra par 54. 413 In this regard there are two possibilities. The first is whether imprisonment constitutes torture or cruel, inhuman or degrading treatment or punishment per se and the second possibility is that it does not constitute such a violation. 2.1.2 IMPRISONMENT IS A CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT PER SE This aspect of the test requires the court to engage upon a consideration of international and comparative law,2034 of values underlying the constitution2035 and finally, whether the conduct of the state was arbitrary.2036 These factors lead the court to a value judgment in order to determine whether the fundamental right not to be tortured or treated in a cruel, inhuman or degrading manner has been violated.2037 Public opinion is not a factor that the courts will take into account.2038 Instead the courts held that arbitrariness, dehumanization and objectification of the individual are important considerations when deciding whether or not the individual’s dignity has been violated.2039 In the Makwanyane matter the court held that the death penalty had been imposed on different offenders in an inconsistent manner and this resulted in arbitrariness. The court held that poverty, race, chance and the personal views of the judges imposing the sentence played roles in the outcome of capital cases, that is, in the final decision as to who should live and who should die.2040 A similar approach to arbitrariness was adopted by the court in the Williams2041 matter. The court held that the degree of pain inflicted is quite arbitrary, depending as it does on the person who is delegated to do the whipping. The court merely directs the number of strokes to be imposed.2042 2034 S v Makwanyane supra par 33 onwards; S v Williams supra par 23. 2035 S v Makwanyane supra par 131; S v Williams supra par 37. 2036 S v Makwanyane supra par 43 onwards; S v Williams supra par 45. 2037 S v Makwanyane supra par 95; S v Williams supra par 53. 2038 S v Makwanyane supra par 88. 2039 S v Makwanyane supra par 26; S v Williams supra par 28. 2040 S v Makwanyane supra par 51. 2041 S v Williams supra. 2042 S v Williams supra paras 45 and 89. 414 It is possible that a court may conclude that imprisonment, as a type of punishment, violates the prohibition against cruel, inhuman or degrading treatment or punishment because it is an extremely arbitrary type of punishment. The following variables may determine the treatment of the offender in prison, and consequently its arbitrariness: the type of crime committed (for example, violent robbers are considered to be men whereas fraudsters are regarded as effeminate and therefore receive different treatment by fellow prisoners); the prison to which and / or warder to whom the offender is assigned; the character of the offender’s cell mates; the offender’s physical strength (and his ability to physically fight for his survival); the age and attractiveness of the offender (i.e. to other prisoners or warders); whether gangs are rife and active in the section where the offender is detained; whether the offender is provided with any rehabilitation programmes; the level of staffing and health care available to the offender - and so on. Various illustrations of the above factors influencing arbitrariness have been provided in the section dealing with systemic problems. For example, if the offender is in a prison where gangs are rife, such as Pollsmoor Prison, he may be gang-raped and contract HIV/AIDS for merely offending a gang member, or he may be stabbed. If the offender is young and attractive and the warder is corrupt he may be sold as a sex slave to older prisoners. If the prison keeps the offender in his cell for 23 hours a day or is unable to present rehabilitation courses because of understaffing, such as at Krugersdorp Prison, then his prospects for parole are very remote.2043 In these circumstances the prisoner would be serving a sentence equivalent to double or treble what the court ordered him to serve if the rule of thumb approved in S v Brophy2044 and S v Vilikazi2045 is applied. If the warders in the prison are particularly corrupt, such as in Johannesburg prison, the offender may have to pay bribes in order to acquire proper food or else live on a reduced diet. The warders in certain prisons have also been known to rob and sexually abuse offenders. If the offender 2043 Ehrlich v Minister Of Correctional Services and Others supra. 2044 2007 (2) SACR 56 (W). 2045 2000 (1) SACR 140 (W). 415 offends a warder he may, as punishment, be transferred to a super-maximum prison which constitutes a type of torture.2046 The inspecting judge has made a very important observation, i.e. with a 25% increase in total prison population there has been an increase in the natural death rate of 250%. This he sees as illustrative of the very serious consequences of prison population size exceeding approved occupancy.2047 He ascribes this to various factors, including the fact that tuberculosis, pneumonia and HIV/AIDS are the most common causes of natural deaths in prison. He also points out that tuberculosis and pneumonia are highly treatable and preventable, with appropriate management and health care - but that this becomes almost impossible in overcrowded conditions. Furthermore, these diseases are more likely to be transmitted in overcrowded spaces.2048 Thus, even the right to life may be violated in certain circumstances. This further demonstrates the arbitrariness of imprisonment as a type of punishment. For example, the right to life could be threatened simply by the chance decision of which prison to assign a prisoner to. What value judgment a court may ultimately make is important because it may be that cruel, inhuman or degrading punishment or treatment may not be justifiable at all. Alternatively, if it transpires that cruel, inhuman or degrading punishment or treatment is justifiable then, in terms of section 36(1)(a) of the Constitution, the nature of the right that is being violated is an important consideration in the justification process. Should a court find that imprisonment in current South African conditions does constitute a form of punishment that violates the prohibition on cruel, inhuman or degrading treatment or punishment, then it is submitted that this type of imprisonment will not be legally justifiable and the justification determination 2046 Jali Report 365. 2047 Judicial inspectorate of prisons “Annual Report for the period 1 April 2011 to 31 March 2012” Judicial Inspectorate for Correctional Services 416 contemplated in section 36 of the Constitution need not be considered. The remedy that the court might employ will be debated later but the court will be required to order remedial action.2049 2.1.3 IMPRISONMENT IS NOT A CRUEL, INHUMAN OR DEGRADING PUNISHMENT OR TREATMENT PER SE Should a constitutional challenge be raised against imprisonment as a form of punishment and the court does not find that this violates the prohibition on cruel, inhuman or degrading punishment or treatment per se, the court would then be required to carry out the justification determination described in section 36 of the Constitution. 2.2 THE JUSTIFICATION DETERMINATION As noted above the first step is to determine whether there has been a violation of a right contained in the Bill of Rights. To this the court applies a broad, rather than a narrow interpretation of the Bill of Rights. The second step, should it become necessary, is to determine whether this limitation of fundamental rights is justified. It is submitted that imprisonment limits almost all fundamental rights. The court in Goldberg v Minister of Prisons2050 stated that some of the consequences of imprisonment were loss of liberty and self-determination; removal from society; detention in an institution where strict discipline is enforced; loss of freedom of association with family and friends; enforced association with fellow prisoners and the deprivation of the opportunity to earn a livelihood. A number of other fundamental rights that are limited in some way include: • the right to privacy2051 • freedom of opinion2052 2049 Vida supra. 2050 1979 (1) SA (14) (A). 2051 Mandela v Minister of Prisons supra; Mvabaza v Commissioner of Prisons, Ciskei and Another supra; Van Biljon and Others v Minister of Correctional Services and Others supra. 417 • freedom of religious observances2053 • freedom of expression and of assembly, demonstration, picketing, petition and movement2054 • freedom to leave or reside anywhere in the Republic2055 • right of freedom of trade, occupation and profession2056 • the right to control the immediate environment2057 • freedom of property2058 • right to adequate housing and health care2059 • right to education2060 • right to participate in the cultural life of choice.2061 In addition to those that are violated by the very nature of imprisonment in each particular case there may be additional violations of fundamental rights as has been explored in the systemic problems section. It is therefore submitted that in the event of such a challenge the first requirement could be established, namely, that imprisonment violates fundamental rights. The second enquiry which the court is to conduct is whether the particular limitation of fundamental rights by the state can be justified in terms of the factors set out in section 36 of the Constitution. The nature of this enquiry has been set out in the matters of S v Makwanyane2062 and S v Williams and Others.2063 2052 Mandela v Minister of Prisons supra. 2053 St Claire v Cuyler supra. 2054 Goldberg and Others v Minister of Prisons and Others supra. 2055 Ibid. 2056 Thukwane v Minister of Correctional Services and Others supra. 2057 Thukwane v Minister of Correctional Services and Others supra. 2058 Strydom v Minister of Correctional Services and Others supra. 2059 B and Others v Minister of Correctional Services and Others supra. 2060 Thukwane v Minister of Correctional Services and Others supra. 2061 Coyle Commentary on Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules (2006) 115. 2062 1995 (6) BCLR 665 (CC). 2063 1995 (3) SA 632 (CC). 418 2.3 THE ONUS The courts have held that the onus to justify a limitation of fundamental rights rests upon the state.2064 This is not an ordinary onus and to the extent that justification rests on factual and/or policy considerations, the government must put such material before the court. The discharge of this onus includes the submission by the State of legal argument, factual material and policy considerations that motivated the state to limit the fundamental right(s). The failure by the government to submit such argument, policy consideration and factual substantiation may result in the court finding that the limitation of the fundamental right cannot be justified.2065 2.4 THE DETERMINATION The state would therefore have to justify the use of imprisonment (which limits a large number of an individual’s rights) as punishment in current South African conditions. In order to decide whether the limitation is justifiable the test applied in South Africa can be summarized as follows:2066 firstly, a limitation of a fundamental right had to be directed to the achievement of an objective of sufficient importance to warrant the limitation of the right in question (this requirement can be termed legitimacy of the purpose of limitation) and secondly, there has to be proportionality between the limitation and the legitimate objective (this requirement can be termed proportionality). The components of proportionality are as follows: firstly, the measures adopted must be carefully designed to achieve the objective in question (i.e. they must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective); secondly, the means, even if rationally connected to the objective in this first sense, should impair as little as possible the right or freedom in question and thirdly, there must be a proportionality between the effects of the 2064 Ferreira v Levin NO 1996 1 SA 984 (CC). 2065 Moise v Greater Germiston Transitional Local Council supra. 2066 S v Makwanyane supra; S v Williams supra. 419 measures which are responsible for limiting the fundamental right or freedom, and the objective which has been identified as of sufficient importance. 2.4.1 LEGITIMACY The limitation of a fundamental right should be directed to the achievement of a legitimate objective, that is, of an objective of sufficient importance to warrant the limitation of the right in question. Thus, the court is obliged, in this context, to consider the purposes of punishment.2067 The purposes of punishment that were used as criteria in S v Makwanyane2068 were deterrence,2069 prevention,2070 rehabilitation2071 and retribution.2072 Similarly, in S v Williams the purposes of punishment that were employed as criteria were deterrence,2073 retribution,2074 rehabilitation2075 and deterrence.2076 In other words, the criteria employed by the courts to determine the constitutionality of the relevant form of punishment were the same purposes of punishment normally employed by our courts when considering sentence. 2.4.1.1 RETRIBUTION In regard to retribution it is submitted the state would easily justify this, because imprisonment is punishment per se, by virtue of the deprivation of liberty and self- determination.2077 Imprisonment is therefore an afflictive punishment in itself. Therefore the manner in which prisoners are treated shall not aggravate the suffering inherent in imprisonment.2078 The systemic problems that have been identified add a 2067 S v Makwanyane supra; S v Williams supra. 2068 S v Makwanyane supra. 2069 S v Makwanyane supra par 116. 2070 S v Makwanyane supra par 128. 2071 S v Makwanyane supra par 263. 2072 S v Makwanyane supra par 129. 2073 S v Williams supra par 65. 2074 S v Williams supra par 86. 2075 S v Williams supra par 66. 2076 S v Williams supra par 80. 2077 UNSMR Art 57; EPR Rule 102(2); South Africa, Correctional Services Act s 42. 2078 Ibid. 420 punitive burden to prisoners undergoing a sentence of imprisonment that is not necessarily inherent in imprisonment. There are however further additional retributive elements employed in South African prisons. Examples of this are the use of solitary confinement and the use of super maximum facilities such as C-Max. Jali argues that super maximum facilities are institutions that practice torture since the prisoner is held in solitary confinement indefinitely. He states that these institutions are designed to break down the spirit of a prisoner and make him suffer: therefore correction and rehabilitation are not possible.2079 Furthermore, contrary to the rule that prisons are not intended to be places in which prisoners are to be punished, Jali finds that there is no doubt that the purpose of a super-maximum facilities are to further punish and even torture the prisoners.2080 He argues that if the major purpose of the DCS is to rehabilitate prisoners, then there is no justification for the existence of super-max prisons.2081 Moreover, Jali finds that the real purpose of super-max prisons is not security related as argued by the DCS, but that they are used as a form of punishment for those who attack DCS officials.2082 It is therefore submitted that South African prisons are an effective means of retribution. Retribution, generally, is however regarded as the least important aspect of punishment. The most important aspect of retribution is that it requires punishment to be proportional to the offence. That is, that all similarly situated offenders receive substantially the same punishment for the same offence. This is to ensure that punishment is not arbitrary. 2.4.1.2 REHABILITATION Rehabiliation is arguably the most important element of punishment as it reflects the values of a particular society, as well as the very high cost of recidivism.2083 This is 2079 Jali Report 379. 2080 Jali Report 365. 2081 Jali Report 367. 2082 Jali report 381. 2083 Cullen and Gendreau “Assessing Correctional Rehabilitation: Policy, Practices, and Prospects” in Homrey: Washington, D.C. U.S. Department of Justice, National Institute of Justice (ed) 421 because custodial sentences have been demonstrated to have a greater criminogenic effect than non-custodial sentences.2084 Studies in America show that imprisonment has a very poor track record with regard to rehabilitation.2085 Various other studies come to a similar conclusion.2086 The Solicitor General of Canada has concluded that criminal justice policies that are based on the belief that imprisonment, that is, “getting tough” on crime, will reduce recidivism are without empirical support.2087 For this reason prisons have become known as schools of crime.2088 Criminal Justice 2000: Policies, Processes, and Decisions of the Criminal Justice System (2000) Vol 3. 2084 Cullen, Jonson and Nagin “Prisons do not Reduce Recidivism: The High Cost of Ignoring Science” 48S; Cid “Is Imprisonment Criminogenic?: A Comparative Study of Recidivism Rates between Prison and Suspended Prison Sanctions” 459. 2085 Beck and Shipley “Recidivism of Prisoners Released in 1983” (1989) Bureau of Justice Statistics, U.S. Department of Justice, April 1 The reconviction rate is 47% 422 Research has indicated that there is a significant relationship between receiving a custodial sanction and recidivism, with an increase in the latter following incarceration. Moreover harsh conditions of imprisonment are associated with a significant increase in recidivism while shorter, as opposed to longer sentences, have a slightly less criminogenic effect.2089 There is a strong correlation between poor conditions of imprisonment and recidivism, that is, overcrowded prisons have been found to be criminogenic.2090 Therefore overcrowded prisons produce the opposite result that are used to justify the limitation of the prisoner’s rights. In other words, the conditions of detention produce a disutility. These conditions may or may not fall below the critical threshold of conditions of incarceration consistent with human dignity. The correlation between poor conditions of detention and criminogenesis is not disputed.2091 Certain reasons have been suggested: these can be placed in three broad categories, namely, the experience of incarceration; post-incarceration consequences and third party effects. As has been pointed out the experience of incarceration could include exposure to other offenders, a “school of crime” scenario,2092 severance of ties with the community and family,2093 and the brutalization effects of prison.2094 Post- incarceration consequences include labeling,2095 diminished employment prospects2096 and denial of benefits.2097 Third party effects include exposure effects 2089 Jonson The Impact of Imprisonment of Reoffending: A Meta-Analysis (2010) unpublished doctoral dissertation, University of Cincinnati, OH. 2090 Plata v Schwarzenegger docket no. 3:01-cv-01351-TEH (N.D. Cal.), (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2-03-2013); Haney “Summary of Expert Testimony” < http://rbgg.com/wp- content/uploads/_Haney,%20Dr.%20Craig%20%283201%29,%2010-30-08,%20OCR.PDF> (accessed 01-03-2013). 2091 Farrington and Nutall “Prison Size, Overcrowding, Prison Violence, and Recidivism” 221. 2092 Taylor “Growing up Behind Bars: Confinement, Youth Development and Crime” 29. 2093 Maldonado “Recidivism and Paternal Engagement” (2006) 40 Family Law Quarterly 191. 2094 Braithwaite “Restorative Justice: Assessing Optimistic and Pessimistic Accounts” 1. 2095 Moran “Prisoner Reintegration and the Stigma of Prison Time Inscribed on the Body” 564. 2096 Visher, Debus-Sherrill and Yahner “Employment After Prison: A Longitudinal Study of Former Prisoners” 698. 423 and effects on families of offenders. An exposure effect is where the offender has previously survived a prison term or knows of someone who has. This knowledge reduces prison’s deterrent effect.2098 Effects on families of offenders include a loss of income for the family and also various psychological and behavioural problems for the children of the prisoner.2099 The study of systemic problems shows that criminogenic conditions may exist in certain prisons, or possibly all prisons in South Africa: at the very least it has been demonstrated that there is a basis for serious consideration of this possibility. This would form part of the evidence to be led before a court in such a matter: if the existence of these conditions is established, then this would be a strong basis for finding that imprisonment in current South African conditions is not legally justifiable. This is so because the rational connection required by s 36 of the Constitution would be absent. Community-based sanctions such as restorative justice can be justified on this basis since it has been demonstrated that non-custodial sanctions are more effective than imprisonment as a means of reducing recidivism. This means that such sanctions are more effective as a means of rehabilitation.2100 In this connection restorative justice will be considered in more detail below. 2.4.1.3 DETERRENCE The deterrent value of punishment, and by implication imprisonment, rests upon the theoretical foundation of the rational choice model. The model predicts that a person will offend if the benefit of offending is greater than the cost of offending. This model has to take into account the perception of the actor with regards to the benefits and 2097 Eg s 69(8)(a) Companies Act 71 of 2008. 2098 Hagan and Dinovitzer “Collateral Consequences of Imprisonment for Children, Communities, and Prisoners” 121 146. 2099 Fritsch and Burkhead “Behavioral Reactions of Children to Parental Absence Due to Imprisonment” 83. 2100 Bergseth and Bouffard “The Long-Term Impact of Restorative Justice Programming For Juvenile Offenders” (2007) Journal of Criminal Justice 35 433 434. 424 costs of offending, as well as the rate at which he discounts the cost of offending (that is, the rate at which he reduces his valuation of those future costs over time).2101 The rational choice theory predicts an inverse relationship between the objective properties of punishment (certainty, severity, celerity) and the crime rate; a positive relationship between the objective properties of punishment and the perceptual properties of the participants - and finally an inverse relationship between the perceptual properties of punishment (certainty, severity, celerity) and measures of criminal offending. However the studies that have been conducted have generally not substantiated these predictions.2102 Furthermore, for the theory of rational choice to hold true, the process of causal deterrence has to be empirically demonstrated. This implies that a reduction in the crime rate has to follow a particular policy change. In other words, when the law changes the punishment for a particular offence, there must be a corresponding reduction in the committal of that offence. The first phase of this demonstration is to ascertain whether a particular criminal justice policy or practice change has resulted in a reduction in crime. If this relationship can be empirically demonstrated, then it can possibly be attributed to a deterrent effect. The second phase of this demonstration is to create certainty about the causal connection between the policy changes and the impact of that change on the particular crime rate. It is therefore necessary to demonstrate that the perceptions of those who are affected by the said changes have altered in the appropriate manner and that the reduction is not attributable to extraneous factors such as incapacitation.2103 However there are no studies that provide unqualified support for the hypothesis that crime rates are changed by policy changes via a deterrent effect. 2101 Paternoster “How Much Do We Really Know About Criminal Deterrence?” 765 815; Nagin and Pogarsky “Integrating Celerity, Impulsivity, and Extralegal Sanction Threats into a Model of General Deterrence: Theory and Evidence” 865. 2102 Vida supra the discussion on rational choice model in theories of punishment. 2103 Paternoster “How Much Do We Really Know About Criminal Deterrence?” 765 785. 425 Therefore there is little evidence to support the theory that individuals are discouraged from offending by the threat of punishment - whether it be an imposition of imprisonment as the prescribed form of punishment or, where imprisonment is already the prescribed sentence - an increase in the sentence to be served. 2.4.1.4 PREVENTION If the effectiveness of imprisonment is to be decided by its ability to prevent crime by incapacitating the individual offender then it is not a success. The reasons for this submission are as follows: the “revolving doors” phenomenon,2104 that is, the high rate of recidivism indicates that prisoners who are discharged tend to be recaptured shortly after release; the displacement effect, that is, in economic crimes new offenders tend to take the place of those incarcerated;2105 the movement of crime from society into prison, making it a violent place which then has a criminogenic effect on other offenders;2106 an increased price premium on the offending acts, for example, via drug dealing, where, as the risk increases, so does the cost of the product and the profits of dealers, with this in turn attracting more participants into the illegal activity. In other words, incapacitation may prevent the incarcerated offender from offending in society for a time but other offenders take his place and he is then often more likely to recidivate after his release than he would have been if not incarcerated.2107 2.4.2 PROPORTIONALITY As noted above, the enquiry into the justifiability of imprisonment as a type of punishment is a two-fold process. The first is the legitimacy of the purpose of the limitation and the effectiveness of the form of punishment in achieving those purposes, i.e. the supposed rational connection between the limitation and the 2104 Warner, Tara and Kramer “Closing the Revolving Door? Substance Abuse Treatment as an Alternative to Traditional Sentencing for Drug-Dependent Offenders” 89. 2105 Hagan and Dinovitzer Collateral Consequences of Imprisonment for Children, Communities, and Prisoners” 121 146. 2106 Walmsley “Prison Health Care and the Extent of Prison Overcrowding” 9. 2107 See below. 426 legitimate purpose. The second is that the limitation must be in proportion to the objective, or purpose, to which it is rationally connected. Thus, the restrictions must be applied in a manner that conforms to their purpose and should not affect the prisoners to a greater degree or for a longer period than is necessary.2108 The components of proportionality are as follows: firstly, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in this first sense, should impair, as little as possible, the right or freedom in question. Thirdly, there must be proportionality between the effects of the measures which are responsible for limiting the fundamental right or freedom, and the objective which has been identified as being of sufficient importance. Regarding the first point it has already been demonstrated that imprisonment is often arbitrary in that the punishment actually experienced is dependent on a wide variety of factors unrelated to the offence or sentence. Since imprisonment is ineffective in achieving the objectives of punishment, it is also not rationally connected to the objectives of punishment. In both these senses then, imprisonment is arbitrary and, unfair - or based on irrational considerations. Regarding the second point, the principle of legality applies. That is, that even those rights of prisoners which are restricted as a necessary consequence of incarceration may only be limited if this is done by legislation, either expressly or by necessary implication. The restrictions must in addition, be formulated sufficiently narrowly to ensure that prisoners are not exposed to over-broad discretionary powers which deny them the protection of the law.2109 The restrictions on liberty and self- determination, even if rationally connected to the objectives of punishment, should 2108 Coyle A Human Rights Approach to Prison Management 169; EPR Rule 2; UNSMR Art 57; EPR Rule 49; The Kampala Declaration On Prison Conditions In Africa Art 2; South Africa, Correctional Services Act s 4(2)(b); Germany, Prison Act s 81; s 36 of the Constitution of South Africa; S v Makwanyane supra; S v Williams supra. 2109 Minister of Correctional Services and Others v Kwakwa supra; Kruger v Minister of Correctional Services and Others (7117/02) 2005 ZAGPHC 24 (2 March 2005) SAFLII http://www.saflii.org/za/cases/ZAGPHC/2005/24.html> (accessed 21-04-2013); Thukwane v Minister of Correctional Services and Others supra; Mohammed v Minister of Correctional Services and Others supra. 427 impair, as little as possible, the right or freedom in question. This also accords with the residuum principle which provides that a prisoner retains all the basic rights and liberties of an ordinary citizen except those taken away from him by law, expressly or by implication, or those necessarily inconsistent with the circumstances in which he, as a prisoner, is placed. Prisoner rights in South Africa are often impaired far more than would be required for the legitimate purposes of punishment. In this regard the systemic problems are important, as for example in the cases of gangsterism, male rape, corrupt warders, inadequate food and accommodation, violence by warders, failure to provide rehabilitation programmes, solitary confinement, aging infrastructure, inappropriate architecture designed around an outdated penal philosophy, overcrowding, violence by fellow prisoners and so forth. Regarding the third point there must be proportionality between the effects of the measures which are responsible for limiting the freedom, and the objective which has been identified as being of sufficient importance. There often appears, because of the arbitrariness in the nature of the punishment, to be no proportionality between the effects of imprisonment on the prisoners and the purposes of punishment. In addition to all the other violations of rights caused by the systemic problems such as overcrowding, the right to life is often also directly affected by imprisonment. An example of this would be the case where HIV is contracted after male rape, or contracting TB in overcrowded cells. As has been pointed out the inspecting judge has noted that the death rate in prison escalates by 250% for every 25% growth in prison population.2110 A further example of this would be warder or gang-related violence: these are in no way in proportion to a minor offence that may have been the cause of imprisonment in the first place. 2110 Judicial inspectorate of prisons “Annual Report for the period 1 April 2011 to 31 March 2012” Judicial Inspectorate for Correctional Services 428 2.4.3 OTHER CONSIDERATIONS Two very important aspects for the courts to take into account in deciding whether a limitation is justifiable are firstly, whether the state can show that there are no other punishments which are adequate to achieve the purposes for which they are imposed2111 and secondly, whether the punishments in question frustrate the very purpose they are supposed to achieve.2112 Community-based sanctions are important in regard to the former, namely, sanctions that are alternatives to imprisonment. The criminogenic qualities of crowded facilities are important regarding the latter in that they run counter to the purposes of punishment. In Williams2113 the court held that corporal punishment serves no useful deterrent function. On the contrary, its effect is likely to be coarsening and degrading rather than rehabilitative.2114 In Makwanyane2115 the court held that the death penalty counters the possibility of rehabilitation of the convicted person and that this runs counter to the fundamental constitutional value of ubuntu.2116 In conclusion: it is submitted that imprisonment in its current form in South Africa, insofar as it suffers from those systemic problems identified above, may be found to be constitutionally unjustifiable. This could be on one of two grounds. Firstly, the conditions in a particular prison - or the entire system - may be found to violate the prohibition of cruel, inhuman or degrading treatment or punishment. If this is the case, then it is submitted that no further enquiry is necessary. Secondly, it may be that imprisonment does not violate this prohibition. However, even if this is the case, imprisonment violates a large number of fundamental rights. These limitations should be justified in the manner specified by section 36 of the Constitution. The justification process requires the court to consider whether imprisonment is an effective means of realizing the four purposes of punishment. It is respectfully 2111 S v Makwanyane supra par 106; S v Williams supra par 91. 2112 S v Makwanyane supra paras 241 and 260; S v Williams supra par 81. 2113 S v Williams supra. 2114 S v Williams supra par 81. 2115 S v Makwanyane supra. 2116 S v Makwanyane supra paras 241 and 260. 429 submitted that the state will have difficulty showing that imprisonment is effective in rehabilitating offenders, preventing crime or deterring offenders. Thus, there is a possibility that imprisonment, as a form of punishment, may fail this part of the test. Furthermore, because of the systemic problems identified above, there is a further possibility that the courts may find that imprisonment, as a general means of punishment, constitutes a disproportional response to the threat presented by crime. This is, inter alia, because it is an arbitrary type of punishment. It is thus submitted that it is possible that imprisonment, in its current form, will not pass the justification test. The remedy that the court might order involves a different debate but there is a possibility that this could lead to abolitionism.2117 2.5 REDUCTIONIST ARGUMENT The reductionist argument would follow the same reasoning as the abolitionist argument, except that it does not posit the complete abolition of imprisonment. The reductionists argue for a reduction of the overall prison population via a range of strategies that limit admission to prison as also the time period of the incarceration.2118 This principle is a principle of European prison policy but not yet a rule of European prison law. This approach adopts the principle that imprisonment is the sanction of last resort. This rule is based upon skepticism regarding the positive effects of imprisonment, a strong aversion to prison overcrowding and a conviction that expansion of overall prison capacity is unlikely.2119 Reductionism is achieved through what are referred to as front and backdoor strategies. The former involves the decriminalization of a number of types of offences, such as drug-related offences. It also involves the limitation of the use of imprisonment, as well as reducing its minimum prescribed length. It is only to be used 2117 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 19, 20. 2118 Ibid. 2119 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 89. 430 in the case of offences which constitute so great a threat to public security that no other reaction can suffice. Other strategies involve reducing the number of offences in respect of which minimum sentencing legislation applies, or reducing the length of imprisonment imposed by legislation in respect of various offences, as well as the effective use of non-custodial sanctions.2120 Another front door strategy would be the diversion of certain classes of offenders or those accused of certain types of offences from the criminal justice system to a system employing restorative justice. An example of the former could include youthful offenders, and an example of the latter could include offenders accused of certain drug related offences. This will be discussed under the section which proposes remedies below. Apropos back-door strategies: these involve the use of various early release strategies such as correctional supervision and parole.2121 The reductionist policy is supported by the following important considerations: firstly, the right to liberty implies that its deprivation should be a last resort; secondly, expansion of prison capacity does not offer a long term solution to prison overcrowding and hence is an exceptional measure; thirdly, there should be a coherent set of community-based sanctions and fourthly, prison overcrowding has many causes which need to be studied. These are often policy-based reasons such as minimum sentencing legislation, sentencing policy, criminalization of certain types of offences and the stipulation of imprisonment as a potential penalty for certain offences. The appropriateness of these must be considered in their totality.2122 The effects of overcrowding and the impact that it has on conditions of detention have been considered above and this factor in and of itself may constitute cruel, inhuman or degrading treatment or punishment.2123 It is thus highly desirable to mimimise crowding in prisons. Hence in Europe there is considerable support for reductionist strategies. 2120 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 87. 2121 Ibid. 2122 Ibid. 2123 Ibid. 431 It is submitted that in South Africa these policies find support due to the realization that crowded institutions are generally criminogenic and inhumane. This has led to two broad policy responses: the first is the American response2124 which is to abandon rehabilitation as a sentencing guideline, although prison authorities themselves may still attempt to rehabilitate. The second is the Canadian2125and European response which regards prison as a scarce resource to be used only as a last resort. This increases the probability of rehabilitating those in prison, because there will be less crowding.2126 The cost of building prisons is prohibitive and it is unlikely that South Africa will be able to build its way out of the current overcrowding situation. In any case this is effectively impossible since there is a shortage of 50 408 beds and the average cost of a bed, and its necessary ancillaries is R495 000 per bed. This means that the DCS would have to pay approximately R22.6 billion to properly provide for the existing number of prisoners. This however, even if it were possible, does not immediately address the problem as it takes years to construct such a facility.2127 Therefore, other alternatives need to be considered in order to reduce the demand on the scarce resource of prison space.2128 In order for prisons to have any beneficial effect in society it would be necessary to address the problem of overcrowding.2129 The expert evidence2130 in USA Supreme 2131 Court of the United States , in Edmund G. Brown, Jr., Governor of California, Et 2124 Mistretta v United States 488 U.S. 361 (1989). 2125 Public safety Canada for Solicitor General of Canada < http://www.ccoso.org/library%20articles/200201_Gendreau_e.pdf> (accessed 12-03-2013). 2126 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 87. 2127 Judicial inspectorate of prisons “Annual Report for the period 1 April 2008 to 31 March 2009” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 22. 2128 Judicial inspectorate of prisons “Annual Report for the period 1 April 2008 to 31 March 2009” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 22. 2129 Jali Report 180. 2130 Haney “Summary of Expert Testimony” < http://rbgg.com/wp- content/uploads/_Haney,%20Dr.%20Craig%20%283201%29,%2010-30-08,%20OCR.PDF> (accessed 01-03-2013). 2131 Brown v Plata 131 S. Ct. 1910, 179 L. Ed. 2d 969 (2011) [2011 BL 134817]. 432 Al., and in Appellants v Marciano Plata Et Al highlighted the fact that overcrowded prisons are criminogenic.2132 The effects of overcrowding include lack of basic resources such as blankets; an increase in acts of violence between prisoners, and between prisoners and staff; increased facility maintenance expenses and medical and mental health problems among prisoners.2133 It also undermines quality of medical and mental health care in prison2134 and causes or contributes to many health problems in prison, including communicable diseases and mental health problems.2135 Thirdly, limitations on prisoner rights are subject to the principles of legitimacy and proportionality in that the restrictions must be applied in a manner that conforms with their purpose and does not affect the prisoners to a greater degree or for a longer period than is necessary.2136 This implies that the limitation of the various rights discussed above should only be instituted when necessary - and in a manner which is no more onerous than is necessary. In other words, restrictions placed on prisoners shall be the minimum necessary and be proportionate to the legitimate objective for which they are imposed. This rule is a manifestation of the principle of legality as well as the residuum principle that provides that a prisoner retains all the basic rights and liberties of an ordinary citizen, except those taken away from him by law, expressly or by implication, or those necessarily inconsistent with the circumstances in which he, as a prisoner, is placed. Furthermore, section 36(1) of the Constitution requires that the provisions of the Bill of Rights may be limited only in terms of law of general application to the extent that 2132 40. 2133 Haney 129; Kindade and Semond “The Consequences of Jail Crowding” (1995) 41 Crime & Delinquency 150. 2134 Walmsley “Prison Health Care and the Extent of Prison Overcrowding” 9. 2135 World Health Organisation Europe Health in Prisons “A WHO Guide to Essentials in Prison Health” http://www.euro.who.int/__data/assets/pdf_file/0009/99018/E90174.pdf (01-03-2013). 2136 Coyle A Human Rights Approach to Prison Management 169; EPR Rule 2; UNSMR Art 57; EPR Rule 49; The Kampala Declaration On Prison Conditions In Africa Art 2; South Africa, Correctional Services Act s 4(2)(b); Germany, Prison Act s 81; s 36 of the Constitution of South Africa. 433 such limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The principle of legality requires that even those rights of prisoners which are restricted as a necessary consequence or incarceration may only be limited if this is done by legislation, either expressly or by necessary implication. The restrictions must in addition, be formulated sufficiently narrowly to ensure that prisoners are not exposed to overbroad discretionary powers which may deny them protection of the law.2137 Therefore imprisonment should only be used when necessary, that is as a last resort, and then only for a period that is not longer than necessary. Fourthly, prison overcrowding per se in Europe can constitute cruel inhuman and degrading treatment:2138 it is submitted that this also applies in South Africa. As previously indicated the inspecting judge has observed that a 25% increase in total prison population results in a 250% increase in natural deaths is illustrative of the very serious consequences of prison population size exceeding approved occupancy.2139 Various other studies2140 have found that there are numerous deleterious effects resulting from prison overcrowding. For example, the quality of institutional life is significantly worse where there is prison overcrowding. All of this results in a greater number of prisoner complaints. Overcrowding also leads to restrictions on personal space and this in turn increases the number of social 2137 Minister of Correctional Services and Others v Kwakwa supra; Kruger v Minister of Correctional Services and Others (7117/02) 2005 ZAGPHC 24 (2 March 2005) SAFLII http://www.saflii.org/za/cases/ZAGPHC/2005/24.html> (accessed 21-04-2013); Thukwane v Minister of Correctional Services and Others supra; Mohammed v Minister of Correctional Services and Others supra. 2138 Kalashnikov v Russia (no. 47095/99) (2002) < http://hudoc.echr.coe.int/sites/eng- press/pages/search.aspx?i=003-587422-591161> (accessed 26-03-2013); Peers v Greece 19 April 2001. 2139 Judicial inspectorate of prisons “Annual Report for the period 1 April 2011 to 31 March 2012” (31-03-2007) Judicial Inspectorate for Correctional Services 434 interactions among prisoners and this results in high levels of uncertainty, goal interference, and cognitive load. These psychological pressures lead to a higher rate of disciplinary infractions.2141 Moreover the increased demand on the prison’s psychological and physical health care facilities caused by overcrowding reduces the likelihood of treatment for mental and other health problems: this includes a failure to treat emotional, cognitive and psychological problems. In addition to the problems caused by the failure to treat prisoners there are also the negative mental and physical health consequences of the increased levels of uncertainty with which prisoners must cope. This in turn results in an increased probability of interpersonal conflict and assaults, a higher level of prisoner rape and a significantly higher likelihood of suicide.2142 The various problems caused by overcrowding influence each other and exacerbate each other. Thus, there is also less likelihood of treatment of special needs prisoners, a failure to identify mental health disorders timeously and a failure to properly classify prisoners or, where they have been classified, an inability to respond to special needs prisoners.2143 The heightened aggression mentioned above results in a greater punitive approach by prison staff often resulting in the deployment of massive force and violence by staff to keep control of prisoners. The high ratio of prisoners to staff also results in prisoners being kept in their cells for longer periods than is desirable, in some cases 23 hours per day or even longer. The large number of prisoners placing demands on the limited resources of the prison also causes a reduced likelihood of the prisoners participating in training and rehabilitation programmes. The inability to properly classify prisoners, as well as the limitations caused by reduced cell space results in 2141 Megargee “The Association of Population Density, Reduced Space, and Uncomfortable Temperature with Misconduct in a Prison Community” 289 295. 2142 Ciuhodaru “Factors Increasing Mortality Rates in Suicide Attempts in Jail and Prison” 69-72. 2143 DiCataldo “Screening Prison Inmates for Mental Disorder: An Examination of the Relationship Between Mental Disorder and Prison Adjustment” 573 574. 435 high risk and low risk offenders being imprisoned together which has a criminogenic effect.2144 Some of the further physical effects of overcrowding on individual prisoners may include elevated blood pressure (both systolic and diastolic), possible physical and psychological impairment, post-traumatic stress disorder and an increased likelihood of assaults among younger prisoners. These harsh prison conditions as measured by isolation and levels of overcrowding have been shown to increase recidivism,2145 a finding confirmed by the Plata matter.2146 And as previously pointed out, many prisons in South Africa are critically overcrowded and these conditions are not conducive to humane treatment of prisoners, nor of the rehabilitation of prisoners.2147 Fifthly, in line with these concerns the relevant government departments have undertaken to review the minimum-sentence legislation that has contributed to increases in prison population and to conduct research into the effect of long sentences on costs, overcrowding and prison gangs.2148 The current minimum sentencing legislation was introduced into South African law in 1997.2149 Our courts also have come to support reductionist-type policies and in S v M 2150 the court held that correctional supervision, if applied to those who are likely to respond positively to its regimen, can serve to protect society without the destructive impact of incarceration. This includes not only the impact upon the prisoner, but also upon the prisoner’s innocent family members. Furthermore, correctional supervision creates a 2144 Bonta and Motiuk “The Diversion of Incarcerated Offenders to Correctional Halfway Houses” (1987) 24 Journal of Research in Crime and Delinquency 302 312. 2145 Chen and Shapiro “Do Harsher Prison Conditions Reduce Recidivism? A Discontinuity-based Approach” 1; Drago, Galbiati and Vertova “Prison Conditions and Recidivism” 103. 2146 Plata v Schwarzenegger docket no. 3:01-cv-01351-TEH (N.D. Cal.), (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2-03-2013) 9. 2147 Judicial inspectorate of prisons “Annual Report for the period 1 April 2010 to 31 March 2011” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 13. 2148 Judicial inspectorate of prisons “Annual Report for the period 1 April 2010 to 31 March 2011” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 14 – 15. 2149 The Criminal Law Amendment Act 105 of 1997. 2150 2007 (2) SACR 539 (CC). 436 greater chance for rehabilitation than does incarceration in South Africa’s overcrowded prisons. The court also found that South African prisons are overcrowded and that conditions may fall short of the minimum constitutional requirements. In S v Lebuku2151 the court held that the use of non-custodial sentences to assist in reducing overcrowding in our prisons is desirable. The courts are encouraged to explore all available sentencing options in order to seek an alternative to imprisonment that is best suited to the crime.2152 Sixthly, prison overcrowding in South Africa is caused by the entire Justice Crime Prevention and Security Cluster.2153 Of particular concern is the overcrowding caused by increasingly longer sentences. The number of prisoners serving a sentence of life imprisonment increased from 1998 until 2009 by 1023%.2154 Therefore, argues Jali, prison accommodation should be regarded as a scarce resource and employed only as a last resort. He argues that it is preferable to use other forms of punishment, such as community-based sanctions, where possible.2155 As has been previously pointed out, overcrowding in South African prisons is a systemic problem and has been repeatedly highlighted by the inspecting judge and in the Jali Report, in particular. Seventh, the problems of gangs and corrupt officials are closely interconnected: this, along with overcrowding, has made a mockery of any attempt at rehabilitating prisoners. Jali observes that unless the issues of corrupt officials and gangs are addressed crime in South Africa will continue to exist at the current (and possibly even greater) levels of intensity. It was noted that regardless of sentence length and offence a prisoner is put into prison with hardened criminals. On his release he too 2151 2007 JOL 17622 (T) 13-15. 2152 Also see S v Siebert 1998 (1) SACR 554 (A) 539c-d; S v Cele (M1950/2012) 2013 ZAKZPHC 7 (5 February 2013) < http://www.saflii.org/za/cases/ZAKZPHC/2013/7.html > (accessed 30-04- 2013). 2153 Jali Report 626. 2154 Judicial inspectorate of prisons “Annual Report for the period 1 April 2008 to 31 March 2009” (31-03-2007) Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20-%202009.pdf > (accessed 28-04-2013) 12. 2155 Jali Report 638. 437 may be hardened because he has been raped and influenced by gang members and by corrupt officials.2156 Eighth, the inspecting judge also found that the physical architecture of many of the prisons was not suitable to accommodate rehabilitation programmes and was more suited to warehousing prisoners.2157 Ninth, due respect for the dignity of prisoners requires that life in prison should seek to minimize any differences between that life and the positive aspects of life at liberty.2158 However overcrowded prisons characterized by the systemic problems that have been cited are dysfunctional. Tenth, the purpose and justification of a sentence of imprisonment is ultimately to protect society against crime. This can only be achieved if the period of imprisonment is used to ensure, so far as is possible, that the prisoner is rehabilitated and able upon his release to be socially re-integrated.2159 One of the serious systemic problems in South African prisons is the lack of rehabilitation programmes.2160 Eleventh, the dehumanization and objectification of the individual is an important consideration when deciding whether or not his dignity has been violated.2161 It is submitted that overcrowded conditions of imprisonment dehumanize the prisoner who is seen as merely an object to be warehoused until his release. It is submitted that the correct approach for rehabilitation to be seen as a right, as provided for in the 2156 141, 144. 2157 Judicial inspectorate of prisons “Annual Report for the period 1 April 2010 to 31 March 2011” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 35 6. 2158 UNSMR 60(1); EPR Rule 5; Germany, Prison Act s 3. 2159 International Covenant on Civil and Political Rights Art 10; Universal Declaration of Human Rights Art 26 that emphasizes the right to education; UNSMR Art 58; Basic Principles for the Treatment of Prisoners Art 8; EPR Rule 102(1); Germany, Prison Act s 71. 2160 Judicial inspectorate of prisons “Annual Report for the period 1 April 2010 to 31 March 2011” Judicial Inspectorate for Correctional Services < http://judicialinsp.dcs.gov.za/Annualreports/JUDICIAL_INSPECTORATE_ANNUAL%20%20RE PORT_2010-2011.pdf > (accessed 28-04-2013) 33. 2161 S v Makwanyane supra par 26; S v Williams supra par 28. 438 Correctional Services Act2162: moreover it is also a fundamental right2163 since it is fundamentally linked to the principle of ubuntu and consequently human dignity.2164 Therefore punishment must be consistent with these values. Twelfth, the ward principle and safe passage principles require that prisoners are treated as wards of the state and further that the state takes all reasonable steps to ensure the safe passage of a prisoner through the prison system. Overcrowding is known to increase the likelihood of violence between prisoners and between prisoners and staff: in addition it can compromise the mental and physical health of prisoners. Therefore, reductionism, which decreases the level of crowding in prisons, would also be consistent with these two principles. The principles of South African Prison law2165 have been discussed above and they provide, it is respectfully submitted, a sound set of safeguards for prisoner rights. However, as noted above2166 the reality of life in South African prisons often does not adequately respect the rights that prisoners are entitled to. Next, submissions will be made for a possible holistic response to the abuse of prisoner rights. 3. PROPOSED REMEDIES 3.1 INTRODUCTION The purpose of this section is to suggest a number of possible solutions which will provide holistic practical remedies to prison rights abuses. It is submitted that when the state punishes an offender the beneficent state principle applies. The state is a role model par excellence and must treat the weakest and most vulnerable in society in a manner that does not diminish, but rather enhances, their self-esteem and human dignity. If this is not done, then the danger increases that offenders’ regard for a culture of decency and respect for the rights of others will 2162 111 of 1998, s 16. 2163 Thukwane v Minister of Correctional Services and Others supra. 2164 S v Makwanyane supra. 2165 Vida supra. 2166 Vida supra chapter on systemic problems in South African prisons. 439 be diminished. The government is the supposed potent and omnipresent authority that teaches the whole people by its example.2167 This is consistent with the notion of Ubuntu as a constitutional-norm or fundamental constitutional value. There are already several remedies that exist in our law. These include community- based sanctions that reduce reliance upon imprisonment, damages claims, interdicts including structured interdicts and population caps. However further remedies will be suggested below to complement these remedies. The first proposal is that the reductionist strategies currently pursued, such as correctional supervision, should still be employed.2168 However, it is submitted that a further front-door strategy which is consistent with South African values should also be pursued. It will be argued that restorative justice should be incorporated into the existing legislative regime, possibly drawing on the New Zealand legislative model as well as on traditional Xhosa practices. 3.2 RESTORATIVE JUSTICE As discussed in Chapter 7 above one approach for addressing problems in prisons is the European principle of reductionism. One approach within that context and which is consistent with South African law is restorative justice. This approach is also consistent with the constitutional-norm of ubuntu. The objectives of restorative justice and the manner in which it operates have been discussed in some detail above. Restorative justice seeks to combat recidivism by encouraging change in individual offenders and making an effort to facilitate their reintegration into the community.2169 These objectives have also been identified as the goals of restorative justice in South 2167 S v Williams supra 647B – D. 2168 S 75 of the Correctional Services Act; Van Zyl Smit and Snacken Principles of European Prison Law And Policy Penology and Human Rights 89. 2169 United Nations Office on Drugs And Crime Handbook on Restorative Justice Programmes (2006) 10. 440 African law in terms of section 51 of the Child Justice Act2170 and also accord with the four purposes of punishment identified above. In addition to the reductionist strategies, it is submitted that the courts should develop remedies that will allow them greater ability to ensure that the values and practices that underlie the Constitution and the Correctional Services Act are implemented by the Department of Correctional Services. One such remedy is that of special masters. 3.3 SPECIAL MASTERS The origin of the concept of a master who assists the court stems from fourteenth and fifteenth century England. In the equity procedure that developed under the Chancery system, Masters in Chancery assisted the Chancellor in dispensation of equity functions. Their functions were initially to draw up writs, affidavits and certification of deeds. The equity procedures under the Chancery were introduced to provide remedies where the rigid English common law failed to do so. The purpose of the equity jurisdiction was to protect the poor and the defenceless.2171 Rule 53 of the Federal Rules of Civil Procedure in the United States of America provides that a court may appoint a Master only for the following purposes: to perform duties consented to by the parties; to hold trial proceedings and make or recommend findings of fact on issues to be decided without a jury if appointment is warranted by some exceptional condition; to perform an accounting function or resolve a difficult computation of damages; and to address pre-trial and post-trial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district. 2170 75 of 2008. 2171 Brakel “Special Masters in Institutional Litigation” (1979) Vol 4 No 3 American Bar Foundation Research Journal 543 547. 441 Masters are usually appointed in matters that are complex or technical and involve knowledge or skills which the judge would normally not possess or that would involve a large amount of time-consuming work. The Master is considered to have a quasi- judicial role and to be carrying out the work of the judiciary. This role has been described as an “arm of the court”.2172 In Taylor v Perini2173 the United States Supreme Court ruled that racial segregation can only be used to maintain security, discipline, and order within prisons. In this matter they outlined the typical functions of a Special Master in prison matters, for example he supervises compliance with a court order. In this regard he must assume primary responsibility for implementing, coordinating, evaluating and reporting on the progress of all institutional efforts to give effect to the order of the court. He also has the power to hold hearings to evaluate the progress made in regard to the implementation of the court order. Should staff of the defendant institution not co-operate with the implementation of the order as directed by the Special Master he is able to approach the court in order to obtain contempt orders against the relevant personnel. He is entitled at all times to unrestricted access to all institutional files and staff. Moreover he need give no advance warning of his intention to exercise that power and is also entitled to have confidential interviews with any institutional staff as he deems fit.2174 In the Taylor matter the Special Master was required to deal with a number of issues. For example, in the case of interference with legal mail in the prison system he introduced a prisoner reporting system which would identify tampering. He then confronted staff with violations. He also introduced a system to prevent this from recurring. Furthermore he mediated a case between a prisoner and a staff member where the latter had breached the negotiated system. Another issue in which he intervened concerned library materials and access. He compiled a list of available materials, together with those not permitted; he became involved in staff sensitivity training, created a staff manual and also implemented a new system for dealing with library materials and access. The Special Master also became involved in staff 2172 Brakel “Special Masters in Institutional Litigation” 543 551. 2173 503 f2d 899. 2174 Memorandum accompanying order of reference Taylor v Perini 503 f2d 899. 442 appointments and assignments; factors to be considered for promotion; racial aspects of human resource management and the creation of a grievance procedure.2175 It has been argued that the appointment of Special Masters in the context of human rights prison litigation represents the implementation of judicial policy.2176 Their role has been described as one of implementing, monitoring and managing prisons with deep judicial involvement.2177 It has been argued that the idea of a Special Master flows from a new conception of litigation. This is different from an accusatorial model where there are two parties with conflicting interests. The model was proposed by Professor Chayes2178 and labeled “public law litigation”. In this form of litigation the dispute is not about a particular right or wrong but is concerned with the implementation of public policy by a public or quasi-public programme or entity and furthermore, the enforcement or the implementation of public policies as set forth in Acts of Parliament or the Constitution.2179 This type of litigation has four prominent characteristics as follows:. Firstly, the parties and the court create the “shape” the lawsuit, that is, the legal action is not a strict bilateral or accusatorial action: all parties to the litigation have the same goal in mind. They seek a favourable outcome that improves conditions of 2180 detention and strive to find the financial resources for this purpose. Secondly, the relevant set of facts are not based on past occurrences, but are also premised on future predictions. It is also not merely an order to govern future relations but is an ongoing remedy that seeks to manage the staff, the prisoners, and 2175 Brakel “Special Masters in Institutional Litigation” 543 554. 2176 Miller “Wise Masters” (1999) Vol 51 No 6 Stanford Law Review 1751. 2177 Brakel “Special Masters in Institutional Litigation” 543 556. 2178 Chayes "The Role of the Judge in Public Law Litigation" (1976) Harvard Law Review Vol. 89 No. 7 1281 2179 Appel “Intervention in Public Law Litigation: The Environmental Paradigm” (2000) 78 WASH. U. L.Q. 215 220; Brakel “Special Masters in Institutional Litigation” 543 557. 2180 Ibid. 443 their relationship on an ongoing basis in order to create humane conditions of detention.2181 Thirdly, the litigation is started by a particular incident, but it then takes on a wider dimension where the participants, prison authorities and prisoners, become in involved in an ongoing law suit which includes the ongoing management of the relationship by the court. This then involves the totality of conditions in the institution with right and remedy becoming intertwined. Finally, the lawsuit is not a dispute between private individuals but is a grievance about public policy and the implementation thereof. There is no winner in the traditional sense. In the traditional legal action if the plaintiff is successful he obtains compensation and if the defendant wins, the plaintiff loses the claim and the defendant is awarded costs. In public law litigation the litigation affects or impacts a far wider group than the parties to the action: the remedy is ongoing and the means of improving conditions of detention tend to be negotiated by the parties and the court, rather than simply ordered by the court, and involves changes in public policy and practice.2182 The role of the judge is no longer purely one of neutral adjudicator but becomes one of active involvement (possibly via the intermediary of a special master) so as to collect information, develop and implement solutions, and manage the process of institutional transformation. This is also the rationale for the appointment of a Special Master.2183 The extensive powers granted to a Special Master can be observed from the order granted in the matter of Northern District of California and in the matter of Plata v Schwarzenegger.2184 In the United States of America the origins of the Special Master as a court official who supervises the execution of court orders is found in the 2181 Ibid. 2182 Ibid. 2183 Brakel “Special Masters in Institutional Litigation” 543 557. 2184 Docket no. 3:01-cv-01351-THE. See Annexure 1 hereto. 444 role of a receiver who is to hold, manage or liquidate property on behalf of another.2185 South African law contemplates the appointment of officers of the court to carry out certain functions of the court. Examples of these include trustees of insolvent estates,2186 partnerships and the estates of persons getting divorced. Their appointment is by court and they are ultimately responsible to the court (which may remove them from office) for the proper discharge of their duties.2187 In South Africa a civil search, seizure and preservation of evidence procedure exists which is generally known as an Anton Piller2188 order. In this process generally the court orders the sheriff to search for, then seize and preserve2189 evidence which is material to a matter. It will be employed where the applicant justifiably believes the respondent may destroy the evidence if no order is granted. The importance of this order in this context is the role of the supervising attorney.2190 As in the case of a liquidator of the estate or of division of a partnership or a marriage, the attorney acts as the representative of the court to ensure that its orders are properly carried out: he then files a report at court detailing the manner of the search and seizure, and what documents were collected and handed to the sheriff. 2185 Brakel “Special Masters in Institutional Litigation” 543 557. 2186 Enyati Resources Ltd v Thorne supra 556. 2187 Smith The Law of Insovency 3rd ed (1988) 191, 200. 2188 Anton Piller KG v Manufacturing Processes Limited supra. 2189 Vis v Minister of Correctional Services and Others 2013 (1283/2013) [2013] ZAFSHC 101< http://www.saflii.org/za/cases/ZAFSHC/2013/101.html> (accesses 22-07-2013). 2190 See for example Consolidated Practice Notes, Western Cape High Court, Cape Town Rule 24: 5. The order and the accompanying notice are to be served by the sheriff and the contents explained by the supervising attorney in whose presence and under whose supervision the provisions of the order are to be carried out. The supervising attorney shall ensure that no items are removed from the premises until a list of items to be removed has been prepared, and a copy thereof has been supplied to the applicant's attorney and the person served with the order, if present, and such person has been afforded a reasonable opportunity to check such list. The supervising attorney shall not permit the premises to be subjected to a search for items not appearing on the schedule of listed items referred to in paragraph 2 of the order. 6. The supervising attorney shall file with the registrar, by no later than noon on the day but one preceding the return day of the order, a concise report describing the manner in which the order was complied with. The supervising attorney shall ensure that a copy of his/her report is delivered to applicant's attorney and to respondent (or his/her attorney, if represented). 445 A further example in our law of an office similar to that of a special master is the office of the family advocate. The powers and duties of the Family Advocate, according to the Mediation in Certain Divorce Matters Act,2191 include the power to institute an enquiry so as to be able to furnish the court with a report and recommendation on any matter concerning the welfare of the minor child, to appear at the trial or hearing of any relevant application, to adduce any available evidence and to cross-examine witnesses giving evidence at such trial or hearing of an application. Furthermore, in terms of the Children’s Act2192 it is compulsory for parties to attend mediation by the Family Advocate in disputes regarding parental rights and responsibilities in regard to children born out of wedlock. Further examples in our law of an office similar to that of a Special Master are the appointment of a commissioner for taking affidavits2193 in any place outside the Republic of South Africa as well as appointment of curators in respect of persons under disability.2194 In the cases of curators, supervising attorneys and the family advocate these individuals are appointed to assist the court and given certain powers to conduct investigations, compile reports and assist the court in making a decision. In the case of liquidators of partnerships and estates of persons married in community of property, they are appointed by the court for the purpose of carrying out the order of the court, that is, dividing the joint estate. Curators bonis are appointed by the court and carry out the task of administering the affairs of the person under curatorship and are to report to the court regarding their administration. It is submitted that a Special Master would be an appropriate tool for the implementation of institutional reform under judicial supervision in South Africa. A number of systemic problems have been identified in South African prisons. On occasions individual prisoners have petitioned the court in matters which are class 2191 24 of 1987. 2192 38 of 2005. 2193 Uniform Rules of Court, Rules Regulating The Conduct of The Proceedings of The Several Provincial and Local Divisions of The High Court of South Africa, Rule 65. 2194 Uniform Rules of Court, Rules Regulating The Conduct of The Proceedings of The Several Provincial and Local Divisions of The High Court of South Africa, Rule 57. 446 actions. Thus in EN and Others v Government of RSA and Others2195 the court issued a structural interdict that required the prison authorities to remove the restrictions that prevented the applicants (who met the criteria as set out in the National Department of Health’s Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa) from accessing anti-retroviral treatment at an accredited public health facility. The court further ordered that the applicants be provided with the relevant ARV medication. In addition the prison authorities were required to lodge an affidavit with the court setting out the manner in which they would comply with the order and allow the applicants to comment thereon. This was a structural interdict which directed the violator to rectify the violation of the fundamental rights of the applicant i.e. the prisoner, under supervision of the court.2196 Instead of issuing a structural interdict the court could have issued an order appointing a Special Master who would be empowered to take such steps as are necessary to ensure that prisoners receive the necessary medication. The Special Master would either be a medical doctor or someone assisted by a medical doctor - and he would have assistants. This team would be empowered to enter the prison, introduce those policies and procedures that were deemed necessary and ensure that the medication was administered properly. If members of the prison staff failed to assist them, the Special Masters would be entitled to take disciplinary action. They would also be empowered to train the relevant medical staff in the proper means of administering the treatment. In addition they would report to the court on a regular basis regarding progress. As noted above this is not traditional litigation with a “winner” and a “loser” but rather litigation where both the applicant and the respondent seek transformation of the public institution which does not comply with constitutional values. This procedure is appropriate not only for health-related matters but can also be employed in any matter involving conditions of detention including, for example, overcrowding, implementation of rehabilitation programmes, cell conditions and so forth. 2195 2007 (1) BCLR 84 (D). 2196 Currie and De Waal The Bill of Rights Handbook 217. 447 Finally, it is submitted that in addition to the above two remedies that legislative amendments be made to the Correctional Services Act. The purpose of these is to expand upon the existing clauses for protection of prisoners. The broad outlines of a proposed amendment will be discussed below. 3.4 PROPOSED MODEL FOR LEGISLATIVE AMENDMENTS Prior to discussing the model underlying the proposed legislative amendments it is necessary to consider the factors that are responsible for the abuse of prisoner rights. The Constitution and the Correctional Services Act create a framework of prisoner rights which, as revealed by the research on systemic problems, are often not respected. The first aspect which will be considered is the arbitrariness of the treatment of prisoners and the reasons for this. 3.4.1 ARBITRARINESS Numerous instances of arbitrariness in the treatment of offenders have been identified in this research. The passage of each prisoner through the prison system is different.2197 This has been discussed in some detail in the section on systemic issues. This experience may be influenced by many factors, i.e.: • conditions in each prison will vary according to the level of overcrowding and the nature of the rehabilitation programmes offered • whether there is a dominant prisoner who has de facto control of the cell and who is abusive2198 • the level of security to which the prisoner is subject, that is low security, medium security, maximum security or super maximum security2199 2197 Vida supra section on Systemic Problems in South African Prisons. 2198 Jali Report 151. 2199 Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation 448 • the particular warder who is in charge of the prisoner and the level of abuse to which he may subject the prisoner • the ability of management to deliver development programmes; and its ability to deliver the basic necessities of life such as food, bedding, clothing etcetera in accordance with the Correctional Services Act • the area in which he is imprisoned: for example, the Western Cape tends to have greater gang activity than Gauteng; and which gangs are most prevalent in that particular prison, since certain gangs are more violent than others • the age of the infrastructure of the prison which might be more or less humane and more or less dangerous • the level of warder corruption in the particular prison2200 • the staff to prisoner ratio in a particular prison: for example, if the staff ratio is too low prisoners may be detained in their cells up to 23 hours per day which is not the case where the staff to prisoner ratio is more favourable2201 • the level of health care in the particular prison • the nature of the prisoner: for example, young and vulnerable prisoners are more likely to be abused. The impact of this level of arbitrariness is significant. For example, a young vulnerable person who is detained in a violent prison which has gangs could be raped and contract HIV, even though his crime may be relatively minor. Persons 449 who are detained but who are not offered rehabilitation or development programmes effectively serve a longer sentence than other prisoners, for the same offence.2202 Van Zyl Smit argues that the primary cause of arbitrariness in prisons is the imbalance of power between staff and prisoners. The staff aspire to have complete power and domination over prisoners through the use of force, weapons or total isolation. This idea is associated with that of the disciplinary institution where the prisoner is normalized through the process of continual prison discipline, surveillance and sanction. The prison becomes arbitrary because it is governed by means that seek to achieve the goals of staff domination and prisoner discipline. The prison is not characterised by legal constraints on the prison staff or by means of prisoner protection.2203 It is submitted that in South Africa the arbitrary manner in which prisoners are treated stems not from an absence of rights but often from the manner of enforcement of those rights. 3.4.2 CURRENT MECHANISMS FOR ENFORCEMENT OF PRISONER RIGHTS Two broad avenues exist for the enforcement of prisoner rights in South Africa. The first is the complaint mechanism and the second is litigation in the court system. 3.4.2.1 THE COMPLAINT SYSTEM On admission to prison the complaint procedure is explained to the prisoner.2204 In terms of section 21 every prisoner must, on admission and on a daily basis, be given the opportunity of making complaints or requests to the head of the prison or a duly authorised official. This official must record all such complaints and requests and any steps taken in dealing with them. He must further deal with complaints and requests promptly and inform the prisoner of the outcome. If the complaint concerns 2202 S v Vilikazi 2000 (1) SACR 140 (W). 2203 Van Zyl Smit and Snacken Principles of European Prison Law and Policy Penology and Human Rights 350, 351. 2204 S 6(4)(a). 450 an alleged assault, the official must ensure that the prisoner undergoes an immediate medical examination and receives the treatment prescribed by the correctional medical practitioner. If the prisoner is not satisfied with the response to his or her complaint or request, he may indicate this, together with the reasons for the dissatisfaction, to the head of the prison who must refer the matter to the National Commissioner. In terms of section 90 of the Act the Inspecting Judge inspects or arranges for the inspection of prisons in order to report on conditions of detention and any corrupt or dishonest practices in prisons. He must submit a report on each inspection to the Minister and the relevant Parliamentary Committee on Correctional Services and must submit an annual report to the President and the Minister. This report must be tabled in Parliament by the Minister. In terms of section 93 of the Act an Independent Correctional Centre Visitor shall deal with the complaints of prisoners by means of regular visits, and by interviewing offenders in private and recording complaints in an official register: he must also monitor the manner in which they have been dealt with and discuss complaints with the head of the prison or the relevant employee of the prison with a view to resolving the problem. An Independent Correctional Centre Visitor must report any unresolved complaint to the visitors’ committee and may, in cases of urgency or in the absence of such a committee, refer such complaint to the Inspecting Judge. In terms of section 94 of the Act the Inspecting Judge may establish a Visitors’ Committee for a particular area to consider unresolved complaints with a view to their resolution and to submit to the Inspecting Judge those complaints which the Committee cannot resolve. Thus, a complaint procedure exists but there is no mechanism to compel the resolution of complaints. Moreover the prison staff sometimes ignore the office of the Inspecting Judge.2205 2205 Jali 116. 451 The Inspecting Judge is of the view that overcrowded prisons lead to prisoners learning about crime.2206 Prisoners testified that they complain to the Inspecting Judge’s office without any actions arising from such complaints.2207 Employment of solitary confinement is to be referred to the office of the Inspecting Judge.2208 The prisoner may refer this decision to the Inspecting Judge to review the decision.2209 However, Jali is of the view that this process is still flawed because the Inspecting Judge will be reviewing a process where the DCS staff were the de facto “police”, who both prosecuted and made a final decision in the matter. Therefore the inspecting judge will have oversight of a process which has been conducted and manipulated by the prosecuting authority throughout.2210 The office of the Inspecting Judge has been found not to be challenging the Department’s officials. Rather they are seen as an extension of the Department and thus have not been effective in dealing with the treatment of prisoners.2211 Jali found instances of the abuse and even torture of prisoners at certain prisons that are reported to the Independent Prison Visitors without any success.2212 The Jali Commission also found that critics of the Office of the Inspecting Judge were of the view that they did not address the main concerns of the prisoners when it came to their treatment by the Department.2213 Furthermore, Jali reported that complaint boxes were put in inconvenient places. Warders could observed who put complaints in the boxes and then victimize these prisoners.2214 The Inspecting Judge has not come to a factual finding that the DCS is not complying with section 21 of the Correctional Services Act but is of the view that the data on complaints received suggest that current practice does not always conform to the requirements of the section. The Inspecting Judge has also found that in larger 2206 Jali 180. 2207 Jali 333. 2208 S 30 of the Act. 2209 S 24(d) of Act No 25 of 2008. 2210 Jali Report 373. 2211 Jali Report 575. 2212 Ibid. 2213 Jali Report 576. 2214 Ibid. 452 centres there is abuse of the complaints process by prison officials.2215 Furthermore there are reports that DCS officials do not co-operate with the office of the Inspecting Judge and that some officials have assaulted Independent Prison Visitors.2216 It is therefore submitted that although the Inspecting Judge is an important investigating and reporting structure his powers are very limited. In fact he has on occasion been described as a “bulldog with rubber teeth”.2217 3.4.2.2 PRISONERS AND THE COURT SYSTEM Prisoners are forced into complete dependence upon the state for all the necessities of life. There are also a number of obstacles to prisoners exercising their right to have disputes heard in an open court. These are among the many reasons that prisoners are described as the most vulnerable in society. They are unable to earn an income: therefore it is unlikely that they are able to afford an attorney. Prisoners are also unable to leave the prison in order to consult with an attorney. There are two other options that are available to prisoners. The first is possible reliance upon the Legal Aid Board and the other is to litigate without legal assistance. This latter does occur regularly in the United States of America and occasionally in South Africa. The difficulties with a prisoner litigating against his warders are manifold but include: • possible retaliatory action; • the difficulty of leaving the prison, going to the court building to launch an application, attending the hearing of the matter; and 2215 Inspecting Judges Report 2011/2012 39. 2216 Jali Report 576. 2217 Ibid. 453 • having no materials with which to prepare his case: this includes an absence of access to even a very basic legal library or to the internet which would allow him access to certain resources. A litigant who is indigent in a civil matter will only be granted Legal Aid if the matter has prospects of success on a balance of probabilities, if there is availability of resources and where the possibility of substantial injustice would otherwise result.2218 According to the latest Legal Aid reports2219 89% of their work is criminal work and 11% civil work. Of the civil work 12 % is specialized in assisting children. How the balance of the work is apportioned further is unclear but there is a wide variety of civil work in which Legal Aid offers specialized assistance. This includes labour, divorce, family law, land restitution; landlord and tenant ie ESTA and PIE cases; asylum seekers matters; and Hague Convention and Equality Court cases.2220 There is no specialised assistance offered for prisoner litigation. Therefore, it is submitted, that Legal Aid is a possible source of assistance but it is unlikely to offer generalized prisoner assistance but rather ad hoc assistance in certain special cases. However, where conditions of detention are in dispute even the most basic disputes, such as having food served timeously, need to be litigated in the High Court. This is cumbersome, difficult and impractical. It is therefore submitted that there is no meaningful access to court. Possibly for the above reasons most prisoners institute civil actions only after they are released.2221 In the case of delicts prescription begins to run immediately after the delict has been committed.2222 Prior to action being instituted against the prison authorities notice must be given within six months of the delict.2223 Condonation for the late filing of a notice may be granted but whether mere imprisonment would be 2218 Legal Aid Guide (2012) 12th ed 38. 2219 http://www.legal-aid.co.za/wp-content/uploads/2012/12/Legal-Aid-SA-Annual-Report-2012.pdf (accessed 01-08-2013) 57. 2220 Legal Aid Guide (2012) 12th ed Chapter 4. 2221 Van Zyl Smit South African Prison Law and Practice 248. 2222 S 11, Prescription Act No 68 of 1969. 2223 S 3, Legal Proceedings against Organs of State Act 40 of 2002. 454 sufficient reason to grant condonation seems unlikely.2224 Thus, these time limits further frustrate the ability of prisoners to litigate, even after their release. It is therefore respectfully submitted that prisoners are not able to exercise the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or another independent and impartial tribunal or forum in a meaningful manner.2225 The next issue to be addressed regards the development of specialised courts in order to accommodate particular sectors of society, especially those who are vulnerable. 3.4.3 SPECIALISED COURTS There is a trend in South African law to appoint officials and create institutions that are highly specialized in a particular field in order to resolve disputes. There are many examples of these types of specialized courts. Some institutions promote simple procedures for easy access by the public and others do not. A common theme is that they have their jurisdiction limited to a particular area of the law. Several examples will be cited below in order to substantiate this submission. In terms of section 17 of the Patents Act2226 the Court of the Commissioner of Patents is the only court having jurisdiction in the first instance in patent litigation. It has the status of a division of the High Court. In terms of section 83 of the Income Tax Act2227 a special court for the hearing of income tax appeals by persons dissatisfied with decisions made by the commissioner for the South African Revenue Service (SARS) was created. The Special Income Tax Courts sit within divisions of the High Court and consist of a judge of the High 2224 Xaba v Ekurhuleni Metropolitan Municipality ZAGPJHC 26(2011) < http://www.saflii.org/za/cases/ZAGPJHC/2011/26.html> (accessed 02-08-2013). 2225 S 34 of the Constitution. 2226 57 of 1978. 2227 58 of 1962. 455 Court assisted by an accountant of not less than 10 years’ standing, and a representative of the business community. In terms of chapter 4 of the Children’s Act2228 a specialised children’s court is established. This court has jurisdiction on a wide variety of matters involving children as set out in section 45 of the Act. The court has a wide variety of powers and additional powers are granted in terms of section 48 of the Act. In terms of section 193 of the Companies Act2229 the Companies Tribunal is established and it is empowered to adjudicate in relation to any application that may be made to it in terms of the Act, and may make any order provided for in the Act in respect of such an application.2230 In terms of section 185 of the Companies Act2231 the Companies and Intellectual Property Commission was established. This commission seeks to facilitate the efficient and effective registration of companies in terms of the Act as well as intellectual property rights.2232 The Competition Act2233 establishes a Competition Commission which is responsible for the investigation, control and evaluation of restrictive practices, abuses of dominant position and mergers. The Act also provides for the creation of the Competition Tribunal. This tribunal is responsible for adjudicating such matters. The Consumer Protection Act2234 established the National Consumer Commission which is the primary enforcement procedure of the Act. This Act was created to improve the consumer rights of low income persons and to establish an accessible system of redress. 2228 38 of 2005. 2229 71 of 2008. 2230 S 195. 2231 71 of 2008. 2232 S 186. 2233 Act 98 of 1998. 2234 Act 68 of 2008. 456 An Electoral Court was established in terms of Section 18 of the Electoral Act.2235 This court hears appeals from the Electoral Commission. In terms of section 16 of the Promotion of Equality and Prevention of Unfair Discrimination Act2236 every Magistrate’s Court and every High Court is also an Equality Court in the area of its jurisdiction. This court deals with complaints of unfair discrimination. 2237 In terms of the Rental Housing Act the Rental Housing Tribunal was created. This tribunal provides informal mechanisms to landlords and tenants so that they are able to resolve their disputes expeditiously. In terms of section 22 of the Restitution of Land Rights Act2238 a Land Claims Court was created. It has exclusive jurisdiction to decide upon, inter alia, a right to restitution of any land in accordance with the Act, and to decide upon compensation in respect of the appropriation. The Maintenance Act2239 established a Maintenance Court and provides that every Magistrate’s Court is also a Maintenance Court. The Labour Relations Act2240 establishes a labour dispute mechanism. The first type of dispute resolution mechanism is the Commission for Conciliation, Mediation and Arbitration. This is established in terms of section 112 of the Act. The second mechanism is the Labour Court which is established in terms of section 151 of the Act. Different types of disputes follow different routes through these two mechanisms. However, many disputes are first referred to mediation, and failing this, to arbitration. The arbitrator makes a decision which in certain instances may be reviewed by the Labour Court. 2235 Act 73 of 1998. 2236 Act 4 of 2000. 2237 50 of 1999. 2238 22 of 1994. 2239 23 of 1963. 2240 66 of 1995. 457 In addition to the specialised courts, there are ombudsmen who are empowered to adjudicate upon disputes within their jurisdictions. Typically, a relatively informal process is employed and the remedy is expeditious. Examples of such ombudsmen in South Africa include the ombudsman appointed in terms of the Financial Advisory and Intermediary Services Act2241: he is concerned with matters in which a specific client has laid a complaint against a financial services’ provider. The Banking Ombud is a scheme recognised under section 11 of the Financial Service Ombudscheme Act2242 and has statutory jurisdiction to deal with matters arising from the National Credit Act.2243 It is further submitted that it has been recognized by the Legislature that there is a need for less formal and more accessible forums where the group that requires protection is particularly vulnerable. This is made clear in the pre-amble to the Consumer Protection Act2244 which records that the people of South Africa recognise that apartheid and discriminatory laws of the past have burdened the nation with unacceptably high levels of poverty, illiteracy and other forms of social and economic inequality and therefore consumers need accessible, transparent and efficient redress. It is submitted that prisoners also fall into the category of those who are vulnerable and dependent upon the state. 3.4.4 RIGHT TO LEGAL REDRESS In terms of section 33 of the Constitution everyone has the right to administrative action that is lawful, reasonable and procedurally fair. In terms of section 33(2) the state is obliged to give effect to this right and to provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal. Almost all aspects of the prisoner’s life are governed by administrative 2241 37 of 2002. 2242 37 of 2004. 2243 34 of 2005. 2244 68 of 2008. 458 decisions and for that reason it has been argued that prison law as a whole is itself an area of particular administrative law.2245 Furthermore, in terms of section 34 of the Constitution everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum. In terms of the Fourteenth Amendment of the United States Constitution, no State may deprive any person of life, liberty, or property, without due process of law - nor may it deny any person within its jurisdiction the equal protection of the laws. The fundamental constitutional right of a prisoner ensures that he has access to the courts: prison authorities are therefore required to assist prisoners in the preparation and filing of meaningful legal papers by providing them with adequate law libraries or adequate assistance from persons trained in the law.2246 A similar need has been recognized by the Constitutional Court in the matter of Van Vuuren v Minister of Justice and Constitutional Development and Another.2247 It is submitted that in this area of the law there is a theoretical right to dispute resolution but in practice there is no mechanism to make this right meaningful. 3.4.5 BENEFICENT STATE PRINCIPLE It is submitted that prisoners are amongst the most vulnerable persons in South 2248 Africa and are uniquely dependent upon the state. It is further submitted that if the right to meaningful access is denied the beneficent state principle would be violated. The reason for this submission is that prisoners have a right to have disputes resolved. Where the State is in direct control of the environment in which the prisoners live and where it does not create a mechanism whereby prisoners can have disputes resolved in the manner determined in the constitution, then this would 2245 Van Zyl Smit South African Prison Law and Practice 85. 2246 Bounds v Smith supra; Lewis v Casey supra. 2247 2007 (8) BCLR 903 (CC). 2248 Minister of Correctional Services v Lee supra. 459 not be consistent with the state’s position as role model par excellence when punishing. It is respectfully submitted that in South Africa a unique solution is necessary to address the unique set of problems facing South African prisons. 3.4.6 PROPOSED EXPANSION OF POWERS OF THE EXISTING PROTECTION A model will now be proposed which can form the basis of potential legislative amendments. The purpose of these amendments would be to create a greater degree of restraint upon the powers of prison staff and to increase the means of protection of prisoner rights. 3.4.6.1 PROPOSED SOLUTION PROCEDURE It is submitted that a process should be created which will be consistent with South African Law and trends in South African law - and which is consistent with South African values and its constitution. It is submitted that the three tier structure that currently exists in terms of the Correctional Services Act may be employed - but it is also suggested that it is necessary to change the ambit of mandate of each tier, or body. These three bodies are the Independent Prisoner Visitors (IPV),2249 the Visitors’ Committee (VC) and the Office of the Inspecting Judge (IJ). However, it is further submitted that a fourth office should be created, which is independent of the Department of Correctional Services and of the office of the IJ, namely, the office of Prisoner Protector (PP). The role of the latter will be discussed further below. It is proposed that each of these will retain their independence and current powers and that further powers in order to fulfill the roles proposed below should be granted to them. It is further proposed that the IPV have a permanent office at each prison. 2249 These are now known as Independent Correctional Centre Visitors but the term prison has been used throughout this research and therefore the original term Independent Prison Visitor will be employed. 460 However, the VC should adopt a role similar to that of a circuit court and make regular visits to each prison in a particular area. Furthermore, it is proposed, there be at least one IJ office per province. In regard to complaints regarding violations of prisoner rights it is submitted that depending on the nature of the complaint it be dealt with differently. Furthermore, it is submitted that any interested party may submit a complaint. An interested party may include a prisoner, an IPV, a member of the VC, a person from the office of the IJ, a person from the office of the PP, a member of his family, a person in the employ of the DCS or a special master (or a person affiliated with his office). It is submitted that it will be useful to distinguish between three types of prisoner rights violations or limitations. Firstly, there are those limitations of rights which contravene the prohibition on torture or cruel, inhuman or degrading treatment or punishment. Secondly, there are limitations of rights that do not that contravene the prohibition on torture or cruel, inhuman or degrading treatment or punishment but that do frustrate the purposes of punishment. Thirdly, there are those limitations of fundamental rights where that limitation does not violate the prohibition on torture or cruel, inhuman and degrading treatment, nor does it frustrate the purposes of punishment. 3.4.6.2 LIMITATIONS THAT DO NOT VIOLATE THE PROHIBITION ON TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT NOR DO THEY FRUSTRATE THE PURPOSES OF PUNISHMENT It is submitted that complaints regarding limitations of this nature firstly be referred to the office of the IPV for the purpose of resolution by way of a mediation process. At such a mediation a DCS representative should be present, together with the prisoner and a representative from the office of the IPV. This will embrace the values of restorative justice, ubuntu and the beneficent state principle. This will also allow the state to provide an example to the prisoner of the means of dispute resolution. In addition this will give the participants an opportunity to resolve the difficulties among themselves. 461 For example, if a prisoner requests to be moved to another prison in order to be closer to family, he can file his complaint at the offices of the IPV who can then issue notices to the relevant decision-making bodies at the prison and convene a meeting. At this meeting an attempt will be made to resolve the problem. Any difficulties at facilitating the move can be explained to the prisoner and he can explain his motivation to the relevant officials. In the event of the parties not resolving the dispute the IPV can certify that it has been unable to resolve the problem and this can be referred to the office of the VC. The VC’s office should conduct a hearing of an informal nature but in which both sides have an opportunity to present oral evidence. The VC’s office should be staffed by two independent persons with legal training in prison law and be permitted to make a final decision. This decision will be final and binding, subject to a right to take the matter on review to the office of the IJ. In making its decision it is submitted that the test proposed previously in this research be employed. That is that firstly, there must be a valid, rational connection between the prison regulation or limitation and the legitimate interest put forward to justify it. In other words there must be a relationship between the restriction and the legitimate interests of the institution.2250 Secondly, the VC must consider whether there are alternative means that exist for the prisoner to still exercise his rights, even if the limitation is imposed.2251 Thirdly, the impact on other prisoners, staff and prison resources is to be considered in the event of the limitation not being applied to the prisoner, that is, the institutional impact if the prisoner is permitted to exercise the right claimed. This is referred to as the impact accommodation test which is therefore one of assessing the impact on the prison of accommodating that particular right.2252 2250 Par 89. 2251 Par 90. 2252 Ibid. 462 Finally, the VC is to consider whether there are ready alternatives that exist which would allow the prisoner to exercise his right and still satisfy the legitimate interests of the prison. The absence of ready alternatives is an important indication of the reasonableness of the limitation.2253 The onus of justifying the limitation is on the state. This follows form the residuum principle as well as section 36 of the Constitution. 3.4.6.3 LIMITATIONS THAT DO NOT VIOLATE THE PROHIBITION ON TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT BUT DO FRUSTRATE THE PURPOSES OF PUNISHMENT It is submitted in this category the type of complaints would include - but not be limited – to the following: • the failure to provide for the assessment process or the design and implementation of any development plan or programme aimed at achieving the rehabilitation of the prisoner;2254 • the failure to provide meaningful labour opportunities;2255 • the failure to provide amenities conducive to rehabilitation and re-integration of the prisoner;2256 • the failure to provide for an assessment of the prisoner and a correctional sentence plan;2257 and • the refusal to allow the prisoner access to study materials, including e-study opportunities over the internet. 2253 Ibid. 2254 S 37(1)(a) of the Correctional Services Act. 2255 S 37(1)(b) of the Correctional Services Act. 2256 S 37(2) of the Correctional Services Act. 2257 S 38 of the Correctional Services Act. 463 An example of this type of complaint was observed in the matters of in Ehrlich v Minister of Correctional Services and others2258 in which the prison authorities would not allow the prisoner to present development programmes to fellow prisoners in the prison gymnasium and in Ehrlich v Minister of Correctional Services and Others2259 where the prison was not implementing sentencing plans. It is submitted that these types of matters should be divided into two categories. Firstly, matters such as the e-learning type cases where the prisoner seeks facilities in the prison to facilitate his studies or improve himself in some manner which is conducive to his rehabilitation and re-integration. This was illustrated in the matter of Thukwane v Minister of Correctional Services and Others2260 where the complaint by the prisoner was that he was not being granted access to certain study facilities. In these matters it is submitted that the same route should be followed as in the cases where the limitations do not violate the prohibition on torture or cruel, inhuman or degrading treatment or punishment nor do they frustrate the purposes of punishment. However, it is also submitted that the onus in justifying this limitation will be more onerous than in normal cases. There will have to be substantial and compelling reasons why limitations which frustrate the prisoners own rehabilitative efforts are not permitted. It is submitted that the standard “substantial and compelling” is a familiar concept in South African law2261 and is also consistent with the position as set out in section 36 of the Constitution. However, the matter should be referred to the IJ, via the office of the PP, who can attempt to formulate an alternate means of accommodating the prisoner’s bona fide self-improvement efforts, should this be possible. Secondly, in the other cases in which complaints involve rights already embodied in the Correctional Services Act, it is submitted, that there can be no justification for those rights not being accommodated.2262 There can be explanations involving 2258 2009 (2) SA 373 (E). 2259 Ehrlich v Minister of Correctional Services and Others 2008 (484/05) [2008] ZAECHC 94 < http://www.saflii.org/za/cases/ZAECHC/2008/94.html> (accessed 18-06-2013). 2260 2003 (1) SA 51 (T). 2261 See for example s 51(3)(a) of the Criminal Law Amendment Act 105 of 1997. 2262 There is an exception to this rule and that is in terms of s 37(3) of the Correctional Services Act which allows amenities which are conducive to rehabilitation to be realized in a manner 464 budgetary constraints and there can be managerial obstacles but these are by way of explanation and are not legal justifications. In these cases it is submitted the matter must be referred to the PP who must conduct an investigation into the reasons why these rights are not being realized and then he must refer his entire investigation to the office of the IJ, who will hear the matter in open court. This will be discussed in more detail later but the IJ will sit as a court and the DCS must be given an opportunity to present its case and oppose the application of the PP. The reason that the latter category is treated differently from the former is that the latter would point to a failing to give effect to rights in the Correctional Services Act. This failing would point to some form of organizational failing in the Department. 3.4.6.4 LIMITATIONS THAT VIOLATE THE PROHIBITION ON TORTURE OR CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT Where any complaint is of such a nature that it involves a violation of the prohibition on torture or cruel, inhuman or degrading treatment or punishment, the IPV should immediately refer the matter to the PP who will conduct a full investigation and he should then refer it to the IJ. In this regard conditions of detention may fall into this category. However, other actions on the part of prison staff may also fall into this category, for example, certain abuses of solitary segregation, assaults by staff or by gangs, sexual assaults, overcrowding, excessive use of force and so forth. 3.4.6.5 PRISONER PROTECTOR It is submitted that there are four important areas which would require a different procedure from the normal prisoner-based complaint. consistent with the finances of the Department of Correctional Services. In these cases the onus to justify the budgetary constraints is clearly on the Department. 465 The first of these is cruel, inhuman or degrading treatment or punishment of prisoners. The reason for this is that the state is under an absolute legal obligation to prevent this type of treatment or punishment.2263 Where this type of abuse has occurred the state is under an obligation to remedy the wrong. Given the importance of this prohibition it is appropriate that it be referred to the IJ to make a ruling concerning any violations. Secondly, where the systemic issues that have been identified persist this demonstrates that the Department is not able or willing to solve the problems that are affecting the prisoners. This requires intervention of a more holistic character than required by a mere prisoner complaint. For this to be possible a proper report would need to be compiled and referred to the IJ who could then issue an order to assist in redressing the problem. Thirdly, it is apparent from the Jali report that the DCS is not able to properly discipline its staff. This has a direct and negative impact, on an ongoing basis, on the fundamental rights of the prisoners. For this reason, it is submitted that staff disciplinary infractions that impact upon the fundamental rights of prisoners should not be addressed by the DCS directly, but be referred to an independent party, namely the PP, who will be empowered to investigate the complaint and then refer the matter to the IJ. The latter would then be entitled to make an appropriate disciplinary finding and impose, if necessary, a sanction. The sanctions that he may impose would be those that are normal within an employment environment, varying in degree, from verbal warning to dismissal. It is submitted that this type of procedure is not alien to South Africa since a similar process exists in the Military Discipline Supplementary Measures Act2264 as read with section 31(6)(b) of the Defence Act.2265 In this latter category any violation of prisoners’ fundamental rights - possibly caused by a failure of staff discipline - are to be considered, including, but not limited to, all cases of death in custody, and of use of force (or excessive force) on prisoners. 2263 Art 16 of CAT and Art 7 of the ICCPR. 2264 Act 16 of 1999. 2265 Act 42 of 2002. 466 Fourthly, where the limitations of rights do not violate the prohibition on torture or cruel, inhuman or degrading treatment or punishment but do frustrate the purposes of punishment, then the PP should become involved in the complaint. The reason for this is that the Correctional Services Act is premised upon the ideas of prisoner rehabilitation and social re-integration. Therefore, disputes concerning these matters are of great importance. Furthermore, because these limitations frustrate the purposes of punishment they may therefore render imprisonment of the prisoner unjustifiable. Two classes of referral are proposed. Firstly, there are those disputes which are an attempt by the prisoner to improve himself. These should be accommodated where possible and if the prison is able to put forward good reasons for why they cannot accommodate the prisoner, then the matter should be referred to the IJ who can attempt to provide the necessary accommodation. For example, if the question involves the use of the internet for study purposes the IJ may appoint a special master to see if e-learning can be provided, using the appropriate internet filters. Secondly, there are those disputes which involve non-realization of rights and obligations that appear in the Correctional Services Act, for example, the obligation to assess the prisoner and develop a correctional sentence plan. The failure of the prison authorities here is not justifiable in a legal sense. Therefore, it may be that the IJ must intervene by using a Special Master to implement the necessary changes in the prison regime so as to give effect to a prisoner’s rights. The PP is to function as an independent investigative body with full access to the DCS, including staff and records. He should be able to perform a full investigation and then make recommendations. These are to be served on the DCS and then referred to the IJ for hearing, if necessary. In this latter role the PP is to act in a capacity similar to that of the prisoner’s legal representative in a class action or a prosecutor in a criminal action or an employer’s representative in an employment disciplinary setting. 467 3.4.6.6 POWERS OF THE VARIOUS BODIES A number of powers will be proposed to expand the powers of the various protection bodies that currently exist, as well as to provide for the creation of a new office, namely, the prisoner protector. 3.4.6.6.1 INDEPENDENT PRISONER VISITOR It is submitted that the IPV must retain all of their existing functions, including that of receiving complaints. However, they should have the capacity to investigate such further issues as they deem fit. Thereafter the IPV should be obliged to facilitate the possible resolution of the dispute between the complainant and any other person involved in the dispute. For example, the complaint may relate to any of the following: a prisoner-prisoner dispute or prisoner-staff dispute; a staff-staff dispute, that is, if this dispute affects prisoner rights, for example, smuggling of contraband; or a prisoner-department complaint such as something concerning visiting conditions and so forth. Furthermore, if the office of the IPV is of the view that a particular complaint is systemic to the prison in which they are stationed, then they should refer the matter to the PP for investigation. An example of this might be a consistent failure to conduct assessments and compile sentencing plans or a failure to provide proper health care. If, after the investigation, the PP is of the view that there is in fact a systemic problem then they are to refer the matter to the IJ. If the IPV is of the view that the matter involves violation of the prohibition on cruel, inhuman or degrading treatment or punishment then it must also refer the matter to the PP. The PP may not agree with this submission and may refer it back to the IPV. If the PP is of the same view then the PP must investigate and refer it to the IJ for hearing after due notice to the DCS. However, if the complaint that comes before it is cannot be resolved by the parties and it involves frustration of the purposes of punishment, such as failure to assess 468 the prisoner and provide a correctional sentence plan, then it is not to refer the matter to the VC but rather to the PP. If the matter is not one that requires referral to the office of the PP, and it is not resolved, then the matter should be referred to the office of the VC. This body will then hear evidence and make a finding. 3.4.6.6.2 THE VISITOR’S COMMITTEE It is submitted that if the VC is of the view that it is hearing a matter that indicates that there is a systemic failure in a particular prison, then it must refer the matter to the PP who may refer it to the IJ if it is of the view that there is a systemic failing. If the VC is of the view that the matter involves treatment or punishment that violates the prohibition on cruel, inhuman or degrading treatment or punishment then it must also refer the matter to the PP. The PP may not be in agreement with this submission and may refer it back. If the PP is of the same view then it must investigate and refer it to the IJ for hearing in open court after due notice to the DCS. If the VC is of the view that the complaint does not involve the prohibition on cruel, inhuman or degrading treatment or punishment but does involve a matter in which the purposes of punishment are frustrated, then the matter should be referred to the PP. The PP then should investigate the matter and if it is of the view that there is merit in the complaint it should investigate it and refer it to the PP. If the VC is of the view that the complaint is not symptomatic of a systemic failing, and does not violate the prohibition on cruel, inhuman or degrading treatment or punishment, or involve any frustration of the purposes of imprisonment, then it should have the power to resolve the dispute. In this regard it may find that the complaint is well-founded and may order that the prison authorities rectify the problem. For example, if the complaint relates to the DCS not permitting sufficient visiting hours then the VC can order that the Department rectify the situation. 469 Furthermore, it is submitted that the complaint would stand as notice in terms of Legal Proceedings against Organs of State Act.2266 There are two further areas that require comment: the first is the capacity to award damages and the second is criminal proceedings. It is submitted that where there are potential criminal proceedings that may follow, the records of the VC are to be inadmissible in a subsequent criminal trial - but that the record be referred to the PP who is to compile a formal complaint and refer it to the prosecuting authorities who can then prosecute matters as they deem fit. This would include assaults by staff on prisoners or by prisoners on other prisoners. It is submitted that regarding damages’ actions the prisoner should be given an election to proceed before the VC or else to deal with that aspect as he deems fit. He may choose to refer it to his own attorney or simply abandon the claim. If he chooses to pursue it before the VC then he should forward the record of the proceedings and then lead argument before the IJ. Although the VC is an informal process the prisoner shall be entitled to obtain an attorney at his own expense if he so chooses. 3.4.6.6.3 OFFICE OF THE PRISONER PROTECTOR It is suggested that the office of the PP is to act in four types of matters that are referred to it. These are matters involving instances of cruel, inhuman or degrading treatment or punishment or where the systemic issues in a particular prison or prisons persist and the DCS cannot resolve them. They could also be matters involving staff disciplinary infractions that impact upon the fundamental rights of prisoners or complaints involving frustration of the purposes of punishment, such as the failure to assess the prisoner and provide a correctional sentence plan. The PP is to investigate matters referred to it, or which it elects to investigate, and if it decides, after completing its investigation and report, that there are merits to a 2266 40 of 2002. 470 particular complaint or group of complaints then it is to refer these matters to the IJ. It is to have wide powers of investigation, search and seizure in order to properly investigate complaints before it. Those powers would include access to all documents, records, computers, prisons, members of staff of the DCS and prisoners. It may also convene meetings with IPV and VC staff members. Once it has completed its investigation it is to make a decision whether to prosecute a particular matter or not. It prosecutes these matters before the IJ upon due notice to all affected parties who may oppose the application. 3.4.6.6.4 THE OFFICE OF THE INSPECTING JUDGE It is submitted that this would constitute a specialised court of first instance for prisoner right disputes as proposed above. It would not be called upon to address all disputes since some of these can be dealt with by the VC’s office. However it would sit both as a division of the high court and as a tribunal appointed for that purpose by the Promotion of Administrative Justice Act.2267 Typically it would hear five types of matters. These would be matters involving instances of cruel, inhuman or degrading treatment or punishment, matters where the systemic issues in a particular prison or prisons persist and the Department of Correctional Services cannot resolve them, staff disciplinary infractions that impact upon the fundamental rights of prisoners, matters where the purposes of punishment are being frustrated and matters brought before it by prisoners or the PP in terms of the Promotion of Administrative Justice Act.2268 Typically matters before it would be matters referred to it by the office of the PP who would act as the representative of a class of prisoners or as a prosecutor in employment disciplinary proceedings. The types of orders it would be able to make are damages awards including constitutional damages awards, interdicts including structural interdicts and 2267 Act 3 of 2000. 2268 3 of 2000. 471 population caps. The court could also issue an order that a particular prison cease receiving prisoners until the level of overcrowding has been reduced to a level ordered by the court. As discussed above, where the limitations of rights do not violate the prohibition on torture or cruel, inhuman or degrading treatment or punishment - but they do frustrate the purposes of punishment - then two classes of dispute should be created, i.e. firstly, those disputes which are an attempt by the prisoner to improve himself. These should be accommodated where possible, and if the prison authorities are of the view they cannot do so, they should put forward their reasons. The standard of proof here should be higher, namely, substantial and compelling, and furthermore the IJ should attempt to resolve the dispute in a manner that accommodates the prisoner in some way. For example, if the question involves the use of the internet for study purposes then the IJ may appoint a special master to see if e-learning can be accommodated using the appropriate internet filters. Second are those disputes which involve non- realization of rights and obligations that appear in the Correctional Services Act, for example, the obligation to assess the prisoner and develop a correctional sentence plan. Their failure, it is submitted, cannot be justified in legal terms. Therefore, it may be that the IJ must intervene by using a Special Master to implement the necessary changes in the prison to give effect to the rights of the prisoner. It is submitted that one of the tools at the disposal of the IJ would be the appointment of a Special Master to oversee the execution of any orders which it makes, should this be necessary. 4. CONCLUSION In this study the history of prisons was traced in order to illustrate the philosophy underlying prisons and how, despite the best intentions, prisons often have degenerated into a state where prisoners are detained in very poor conditions. Independently of this, a new world order developed after World War Two which sought to protect human rights. A significant tension arose between conditions in prisons and the treatment of prisoners - and the standards demanded by the developing field of human rights law. The responses of both international law and 472 domestic law in other jurisdictions were researched. Using these, together with the South African Constitution and common law, as a basis, a comprehensive set of principles was proposed for adjudication upon disputes regarding prisoner rights. Following this, the reality of prison conditions in South Africa was explored and systemic problems were identified. Finally, proposals that could be employed in resolving the problems that exist in implementing protections of prisoner rights in South African prisons were put forward. 473 BIBLIOGRAPHY 1. BOOKS Aday, RH Aging Prisoners: Crisis in American Corrections (2003) Praeger Baxter, L Administrative Law 2nd ed (1989) Juta and Co Beccaria, C On Crimes and Punishments (Henry Paolucci translation) Macmillan (1986) (1764) Bentham J, Proposal for a New and Less Expensive Mode of Employing and Reforming Convicts (1798) London Bentham, J The Principles of Morals and Legislation (1789) Clarendon Press McKelvey, B American Prisons: A History of Good Intentions (1977) Patterson Smith Boberg, PQR The Law of Delict Volume 1 Aquilian Liability (1984) Juta and Co Chanock, M (ed) Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (1998) Cambridge University Press Chanock, M The Making of South African Legal Culture 1902-1936: Fear, Favour and Prejudice (2007) Cambridge University Press Clinard, MB and Meier, RF Sociology of Deviant Behavior (2010) Cengage Learning Collins, WC Jails and the Constitution An Overview 2nd ed (2007) U.S. Department of Justice National Institute of Corrections Consedine, J Restorative Justice: Healing the Effects of Crime (1995) Ploughshares Publications 474 Coyle, A Commentary on Recommendation Rec (2006) 2 of the Committee of Ministers to member states on the European Prison Rules (2006) Coyle, A A Human Rights Approach to Prison Management (2002) International Centre for Prison Studies Currie, I and De Waal, J The Bill of Rights Handbook 5th ed (2005) Juta & Co Cullen, FT and Gendreau, P “Assessing Correctional Rehabilitation: Policy, Practices, and Prospects” in Homrey: Washington, D.C. U.S. Department of Justice, National Institute of Justice (ed) Criminal Justice 2000: Policies, Processes, and Decisions of the Criminal Justice System (2000) Vol 3 United States Department of Justice Dikötter, F and Brown, I (eds) Cultures of Confinement: A History of the Prison in Africa, Asia, and Latin America (2007) Hurst Foucault, M Discipline and Punish: The Birth of the Prison (1977) Pantheon Books Garland, D Punishment and Modern Society A Study in Social Theory (1990) University of Chicago Press Hiemstra, VG and Kriegler, J Suid-Afrikaanse Strafproses 5th ed (1993) Butterworths Kommers, DP The Constitutional Jurisprudence of the Federal Republic of Germany 2nd ed (1997) Duke University Press M Chanock (ed) Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia (1998) Morris, N and Rothman, DJ (eds) The Oxford History of the Prison, The Practice of Punishment in Western Society (1998) Oxford University Press 475 Tonry, M (ed) The Handbook of Crime and Punishment (1998) Oxford University Press Palmer, JW Constitutional Rights of Prisoners 8th ed (2006) W.H. Anderson- publishers Cullen, FT; Wright, JP; Blevins, K Taking Stock: The Status of Criminological Theory (2011) Transaction Publishers Othmani, A Making Standards Work: An International Handbook on Good Prison Practice 2nd ed (2001) Prison Reform International Rabie, MA and Strauss, SA Punishment and Introduction to Principles 4th ed (1985) Lex Patria Rabie, MA Theories of Punishment (1977) Lex Patria Schwartz, MA and Urbonya, KR Section 1983 Litigation 2nd ed (2009) Federal Judicial Center Smith, C The Law of Insolvency 3rd ed (1988) Butterworths Van Zyl Smit, D and Snacken, S Principles of European Prison Law and Policy Penology and Human Rights (2009) Oxford University Press Van Zyl Smit, D South African Prison Law and Practice (1992) Butterworths Venter, HJ Die Geskiedenis van die S.A. Gevangenisstelsel 1652 - 1958 (1959) Cape Town, Haum 476 2. JOURNALS AND ARTICLES Albertus, C “Protecting inmates’ dignity and the public’s safety: A critical analysis of the new law on medical parole in South Africa” (2012) Vol 16 Law Democracy & Development 185 191 (accessed 20-04-2013) Albrecht, H-J “Prison Overcrowding - Finding Effective Solutions: Strategies and Best Practices against Overcrowding in Correctional Facilities” (2012) Vol 43 in Forschung aktuell Max-Planck-Inst. für Ausländisches und Internat. Strafrecht 67 Allen, FA “Criminal Justice, Legal Values and the Rehabilitative Ideal” (1959) Vol 50 Iss 3 Journal of Criminal Law and Criminology 226 Andenaes, J “The General Preventive Effects of Punishment” (1966) Vol 114 No 7 University of Pennsylvania Law Review 949 Andrews, D; Bonta, J and Hoge, R “Classification for Effective Rehabilitation: Rediscovering Psychology” (1990) Vol 17(1) Criminal Justice and Behavior 19 Anwar, S and Loughran, T “Testing A Bayesian Learning Theory of Deterrence Among Serious Juvenile Offenders” (2011) 49.3 Criminology 667 Appel, PA “Intervention in Public Law Litigation: The Environmental Paradigm” (2000) 78 WASH. U. L.Q. 215 477 Barnes, HE “The Historical Origin of the Prison System in America” (1921) Vol 12 No 1 Journal of the American Institute of Criminal Law and Criminology 35 Becker, GS “Crime and Punishment: An Economic Approach” (1968) 76 Journal of Political Economics 169 Bergseth, KJ and Bouffard, JA “The Long-Term Impact of Restorative Justice Programming For Juvenile Offenders” (2007) Journal of Criminal Justice 35 433 Blumstein, A and Larson, RC “Problems in Modeling and Measuring Recidivism” (1971) 8 Journal of Research in Crime and Delinquency 124 Bonta, J and Motiuk, LL “The Diversion of Incarcerated Offenders to Correctional Halfway Houses” (1987) 24 Journal of Research in Crime and Delinquency 302 312 Braithwaite, J “Restorative Justice: Assessing Optimistic and Pessimistic Accounts” Crime and Justice (1999) 1 Brakel, SJ “Special Masters in Institutional Litigation” (1979) Vol 4 No 3 American Bar Foundation Research Journal 543 Chen, MK and Shapiro, JM “Do Harsher Prison Conditions Reduce Recidivism? A Discontinuity-Based Approach” (2007) 9 American Law and Economics Review 1 478 Choudree, RBG “Traditions of Conflict Resolution in South Africa” (1999) 1(1) African Journal of Conflict Resolution 9 Cid, J “Is Imprisonment Criminogenic? A Comparative Study of Recidivism Rates between Prison and Suspended Prison Sanctions” (2009) 6 European Journal of Criminology 459 Ciuhodaru, T “Factors Increasing Mortality Rates in Suicide Attempts in Jail and Prison” (2009) 17.1 Romanian Journal Legal Medicine 69 Cohen, SA “Introduction to the Theory, Justifications and Modern Manifestations of Criminal Punishment” (1981) 27 McGill LJ 73 Cullen, FT Gendreau, P “From Nothing Works to What Works: Changing Professional Ideology in the 21st Century” (2001) Vol 81 No 3 The Prison Journal 313 Cullen, FT; Jonson, CL and Nagin, DS “Prisons Do Not Reduce Recidivism The High Cost of Ignoring Science” (2011) Vol 91 No 3 The Prison Journal 48 DiCataldo, F; Greer, A and Profit, WE “Screening Prison Inmates for Mental Disorder: An Examination of the Relationship Between Mental Disorder and Prison Adjustment” (1995) 23 The Bulletin of the American Academy of Psychiatry and the Law 573 Donohue, JJ and Levitt, SD “The impact of Legalized Abortion on Crime” (2001) 116 2 Quarterly Journal of Economics 379 479 Doob, AN and Webster, CM “Sentence Severity and Crime: Accepting the Null Hypothesis” (2003) Vol 30 Crime and Justice 143 Dowden, C; Antonowicz, D and Andrews, DA “The Effectiveness of Relapse Prevention with Offenders: A Meta-Analysis” (2003) Vol 47 No 5 International Journal of Offender Therapy and Comparative Criminology 516 Drago, F; Galbiati, R and Vertova, P “Prison Conditions and Recidivism” (2011) 13(1) Am Law Econ Rev 103 Dubber, MD “Theories of Crime and Punishment in German Criminal Law” (2005) Vol 53 No 3 The American Journal of Comparative Law 679 Edwards, JA “Rehabilitation Potential in Prison Inmates as Measured by the MMPI” (1963) Vol 54 No 2 The Journal of Criminal Law, Criminology, and Police Science 181 Ellwood, CA “Lombroso's Theory of Crime” (1912) Vol 2 No 5 Journal of the American Institute of Criminal Law and Criminology 716 Farrington, DP and Nutall, CP “Prison Size, Overcrowding, Prison Violence, and Recidivism” (1980) 8 Journal of Criminal Justice 221 480 Fritsch, TA and Burkhead, JD “Behavioral Reactions of Children to Parental Absence Due to Imprisonment” (1981) Vol 30 Issue 1 Family Relations 83 Gardiner, G “The Purposes of Criminal Punishment” (March 1958) Vol 21 No 2 The Modern Law Review 117 121 Gibbs, JP “Crime, Punishment, and Deterrence” (1968) Southwestern Social Science Quarterly 515 Gill, VT and Maynard, DW “On ‘Labeling’ in Actual Interaction: Delivering and Receiving Diagnoses of Developmental Disabilities. Social Problems” (1995) Social Problems 11 Granucci, AF “Nor Cruel and Unusual Punishments Inflicted: The Original Meaning” (1969) 57 (4) California Law Review 839 Hagan, J and Dinovitzer, R “Collateral Consequences of Imprisonment for Children, Communities, and Prisoners” Crime and Justice (1999) 121 Haney, C “The Wages of Prison Overcrowding: Harmful Psychological Consequences and Dysfunctional Correctional Reactions” (2006) 22 Washington University Journal of Law & Policy 265 481 Inciardi, J; Martin, S; Butzin, C; Hooper, R and Harrison, L “An Effective Model of Prison-Based Treatment for Drug-Involved Offenders” (1997) Issue 27 Journal of Drug Issues 261 Johnson, R and Raphael, S “How Much Crime Reduction does the Marginal Prisoner Buy?” (2007) Journal of Law and Economics (accessed07-03-2013) Kinkade, P; Leone, M and Semond, S “The Consequences of Jail Crowding” (1995) 41 Crime & Delinquency 150 Langbein, J "The Historical Origins of the Sanction of Imprisonment for Serious Crime" (1976) Yale Law School Yale Law School Legal Scholarship Repository Latimer, J; Dowden, C and Muise D “The Effectiveness o Restorative Justice Practices: A Meta-Analysis” (2005) Vol 85 No 2 The Prison Journal 127 Levitt, SD “Understanding why crime fell in the 1990s: Four factors that explain the decline and six that do not” (2004) 18.1 The Journal of Economic Perspectives 163 Logan, CH and GG “Meta-Analysis and the Rehabilitation of Punishment” (June 1993) 10 Justice Quarterly 245 482 Maldonado, S “Recidivism and Paternal Engagement” (2006) 40 Family Law Quarterly 191 Martinson, R “New Findings, New Views: A Note of Caution Regarding Sentencing Reform” (1979) Hofstra Law Review 243 Martinson, R “What Works? Questions and Answers About Prison Reform” (1974) 35 Public Interest 22 McClelland, KA and Alpert, GP “Factor Analysis Applied to Magnitude Estimates of Punishment Seriousness: Patterns of Individual Differences” (1985) 1 Journal of Quantitative Criminology 307 Megargee, EI “The Association of Population Density, Reduced Space, and Uncomfortable Temperature with Misconduct in a Prison Community” (1977) 5 American Journal of Community Psychology 289 Miller, ML “Wise Masters” (1999) Vol 51 No 6 Stanford Law Review 1751 Mokgoro, JY “Ubuntu And The Law In South Africa” African Journals Online 2013) 483 Moran, D “Prisoner Reintegration and the Stigma of Prison Time Inscribed on the Body” (2012) Vol 14 No 5 Punishment & Society 564 Morgenstern, C “Judicial Rehabilitation in Germany – The Use of Criminal Records and the Removal of Recorded Convictions” (2011) European Journal of Probation 20 Nagin, DS “Criminal Deterrence Research at the Outset of the Twenty-First Century” (1998) 23 Crime and Justice 1 Nagin, DS and Pogarsky, G “Integrating Celerity, Impulsivity, and Extralegal Sanction Threats into a Model of General Deterrence: Theory and Evidence” (2001) 39(4) Criminology 865 Nagin, DS; Daniel; Cullen, FT and Jonson, CL “Imprisonment and reoffending” (2009) 38.1 Crime and Justice: An Annual Review of Research 115 Nassbaum, B “Ubuntu: Reflections of a South African on Our Common Humanity” (2003) Vol 4 No 4 Reflections 21 Nieuwbeerta, P; Nagin, DS and Blokland, AAJ “Assessing the Impact of First-Time Imprisonment on Offenders’ Subsequent Criminal Career Development: A Matched Samples Comparison” (2009) 25 Journal of Quantitative Criminology 227 Pager, D “The Mark of a Criminal Record” (2003) Vol 108 No 5 American Journal of Sociology 937 484 Paternoster, R “How Much Do We Really Know About Criminal Deterrence?” (2010) Vol 100 No 3 The Journal Of Criminal Law & Criminology 765 Paternoster, R; Saltzman, LE; Waldo, GP and Chiricos, TG “Perceived Risk and Social Control: Do Sanctions Really Deter?” (1983) Vol 17 No 3 Law & Society Review 457 Peek, C “Breaking Out of the Prison Hierarchy: Transgender Prisoners, Rape, and the Eighth Amendment” (2003) Santa Clara Law Rev 44 1211 Piliavin, I; Gartner, R; Thornton, C and Matsueda, RL “Crime, Deterrence and Rational Choice” (1986) American Sociological Review 101 Riveland, C “Prison Management Trends, 1975-2025” (1999) 26 Crime and Justice 163 Rockmore T “Enlightenment and Reason” (1987) The Journal of Philosophy Vol 84 699 Stinneford, JF “Incapacitation through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity” (2006) Vol 3 University of St Thomas Law Journal 559 485 Takagaki, P and Shank, G “Critique of Restorative Justice” (2004) Vol 31 No 3 Social Justice 147 Taylor, CS “Growing up Behind Bars: Confinement, Youth Development and Crime” (1996) 3 Journal of the Oklahoma Criminal Justice Research Consortium 29 Teeters, NK “The Prison Systems of England” (1951) Vol 41 No 5 Journal of Criminal Law and Criminology 578 Thornberry, E “Defining Crime through Punishment: Sexual Assault in the Eastern Cape c.1835–1900” (2011) Vol 37 No 3 Journal of Southern African Studies 1 Tonry, M “Learning from the Limitations of Deterrence Research” (2008) Vol 37 No 1 Crime and Justice 279 Tonry, M and Petersilia, J “American Prisons at the Beginning of the Twenty-First Century” (1999) Vol 26 Crime and Justice Prisons 1 Visher, CA and Travis, J “Transitions from Prison to Community: Understanding Individual Pathways” (2003) Vol 29 Annual Review of Sociology 89 Visher, CA; Debus-Sherrill, SA and Yahner, J “Employment After Prison: A Longitudinal Study of Former Prisoners” (2011) Vol 28 Issue 5 Justice Quarterly 698 486 Von Hirsch, A “Proportionality in the Philosophy of Punishment” (1992) Vol 16 Crime and Justice 55 Walmsley, R “Prison Health Care and the Extent of Prison Overcrowding” (2005) 1 International Journal of Prisoner Health (2005) 9 Warner, TD and Kramer, JH “Closing the Revolving Door? Substance Abuse Treatment as an Alternative to Traditional Sentencing for Drug-Dependent Offenders” (2009) 36.1 Criminal Justice and Behavior 89 Weinreb, LL “Desert, Punishment, and Criminal Responsibility” (1986) Vol 49 No 3 Law and Contemporary Problems 47 Weisburd, D and Eck, JE “What Can Police Do to Reduce Crime, Disorder, and Fear?” (2004) 593 1 The Annals of the American Academy of Political and Social Science 42 Williams, KR; Gibbs, JP and Erickson, ML “Public Knowledge of Statutory Penalties: The Extent and Basis of Accurate Perception” (1980) 23(1) Pacific Sociological Review 105 Windlesham, DJ “Life Sentences; The Paradox of Indeterminacy” (1989) Crim LR 244 487 Zehr, H “Doing Justice, Healing Trauma – The Role of Restorative Justice in Peacebuilding” (2008) Vol 1 No 1 South Asian Journal of Peacebuilding 1 4 488 CASE REGISTER 1. Africa 1.1 South Africa Afri-Forum and Another v Malema and Others 2011 (6) SA 240 (EqC). Anderson v S [1999] 1 All SA 1 (N). August and Another v Electoral Commission and Others 1999 (4) BCLR 363 (CC). B and Others v Minister of Correctional Services and Others 1997 (6) BCLR 789 (C). Barkhuizen v Napier 2007 (5) SA 323 (CC). Bhe and Others v Magistrate Khayelitsha and Others 2005 (1) SA 580 (CC). British American Tobacco South Africa (Pty) Ltd v Minister of Health (463/2011) 3 All SA 593 (SCA). Carmichele v Minister of Safety and Security & Another 2001 (1) SA 489 (SCA). Cassiem v Commanding Officer 1982 (2) SA 547 (C). Christian Education South Africa v Minister of Education 2000 (4) SA 757 (CC). Chu v S (A407/11) 2012 ZAGPJHC 204 (13 March 2012) SAFLII < http://www.saflii.org/za/cases/ZAGPJHC/2012/204.html > (accessed 17-02-2013). City Council of Pretoria v Walker 1998 (2) SA 363. Combrinck and Another v Minister of Correctional Services and Another 2001 (3) SA 338 (D). Dikoko v Mokatla 2006 (6) SA 235 (CC). Du Plooy v Minister of Correctional Services and others [2004] All SA 613. Ehrlich v Minister of Correctional Services and Others 2008 (484/05) [2008] ZAECHC 94 < http://www.saflii.org/za/cases/ZAECHC/2008/94.html> (accessed 18-06-2013). Ehrlich v Minister of Correctional Services and Others 2009 (2) SA 373 (E). 489 EN and Others v Government of RSA and Others 2007 1 BCLR 84 (D). Enyati Resources Ltd v Thorne 1984 (2) SA 551 (C) 556. Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC). Ferreira v Levin NO 1996 1 SA 984 (CC). Fose v Minister of safety and Security 1997 (7) BCLR 851 (CC). Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) par 203. Goldberg and Others v The Minister of Prisons and Others 1979 1 SA 14 (A). Government of the Republic of South Africa v Basdeo and Another 1996 (1) SA 355 (A). Hassim and Another v Officer Commanding, Prison Command, Robben Island and Another; Venkatrathnam and Another v Officer Commanding, Prison Command, Robben Island and Another 1973 (3) SA 462 (C). Hoffmann v South African Airways 2001 (1) SA 1 (CC). Jaftha v Minister of Correctional Services [2012] 2 All SA 286 (ECP). Kruger v Coetzee 1966 (2) SA 428 (A). Kruger v Minister of Correctional Services and Others (7117/02) [2005] ZAGPHC 24. Lee v Minister of Correctional Services 2011 (6) SA 564 (WCC). Lee v Minister of Correctional Services 2013 (2) SA 144 (CC). Mandela v Minister of Prisons 1981 (1) SA 531 (C). 490 Masethla v President of RSA 2008 (1) SA 566 (CC). Mazibuko v Minister of Correctional Services and Another [2007] JOL 18957 (T). McIntosh v Premier, Kwazulu Natal & Another 2008 (6) SA 1 (SCA). Minister of Correctional Services and Others v Kwakwa 2002 (4) SA 455 (SCA). Kruger v Minister of Correctional Services and Others (7117/02) 2005 ZAGPHC 24 (2 March 2005) SAFLII http://www.saflii.org/za/cases/ZAGPHC/2005/24.html> (accessed 21-04-2013). Minister of Correctional Services and Others v Kwakwa 2002 (4) SA 455 (SCA). Minister of Correctional Services v Lee 2012 (3) SA 617 (SCA). Minister of Correctional Services v Tobani [2001] 1 All SA 370 (E). Minister of Home Affairs v National Institute for Crime Prevention and the Re- integration of Offenders (NICRO) and others 2004 (5) BCLR 445 (SCA). Minister of Justice and Another v Hofmeyr 1993 (3) SA 131 (A). Minister of Safety & Security v Van Duivenboden 2002 (6) SA 431 (SCA). Minister van Polisie v Ewels 1975 (3) SA 590 (A). Moegamat Fatieg Jaftha v The Honourable Minister of Correctional Services [2012] 2 All SA 286 (ECP). Mohammed v Minister of Correctional Services and Others 2003 (6) 169 (SE). Moise v Greater Germiston Transitional Local Council 2001 (4) SA 491 (CC). Morrant v Roos and Bateman 1912 AD 92. Moses Kutumela v Minister of Correctional Services and Others (42154/2006) 2009 ZAGPPHC 51 (14 May 2009) SAFLII < http://www.saflii.org/za/cases/ZAGPPHC/2009/51.pdf> (accessed 04-05-2013). Motsemme v Minister of Correctional Services and Others 2006 (2) SACR 277 (W). Mtati v Minister of Justice 1958 (1) SA 221 (A). Mukheiber v Raath & Another 1999 (3) SA 1065 (SCA). Mvabaza v Commissioner of Prisons, Ciskei and Another 1988 (4) SA 348 (Ciskei). Mxolisi v Minister of Correctional Services (06/5172) [2008] ZAGPHC 107 (17 April 2008) Namunjepo and Others Commanding Officer, Windhoek Prison and Another 2000 (6) BCLR 671 (NmS). 491 Nortje v Minister van Korrektiewe Dienste en Andere 2001 (3) SA 473 (A). Port Elizabeth Municipality v Various Occupiers 2005 (1) SA 517 (CC). President of the Republic of South Africa and Another v Modderklip Boerdery (Pty) Ltd 40 2005 (5) SA 3 (CC). Pretorius v Minister of Correctional Services 2004 (2) SA 658 (T). Prince v President of the Law Society of the Cape of Good Hope 2002 (2) SA 794 (CC). R v Karg 1961 (1) SA 231 (A). R v Swanepoel 1945 AD. Ramushi v Minister of Safety and Security (6895/2002) 2012 ZAGPPHC 175 (18 August 2012) SAFLII S v Blose (AR 615/10) 2012 ZAKZPHC 14 (14 March 2012) http://www.saflii.org/za/cases/ZAKZPHC/2012/14.pdf (accessed 17-02-2013). S v Brophy 2007(2) SACR 56 (W). S v Bull and Another; S v Chavulla and Others 2002(1) SA 535(SCA). S v Cele (M1950/2012) 2013 ZAKZPHC 7 (5 February 2013) < http://www.saflii.org/za/cases/ZAKZPHC/2013/7.html > (accessed 30-04-2013). S v Daniel (CC 05/2011) 2011 NAHC 351 (25 November 2011) SAFLII 492 S v Khumalo and Another 1984 (3) SA 327 (A) 331. S v Lebuku 2007 JOL 17622 (T). S v M 2007 (2) SACR 539 (CC). S v Makwanyane 1995 (3) SA 391 (CC). S v Mark and Another 2001 (1) SACR 572 (C). S v Maseko 1982 (1) SA 99 (A). S v Matiwane 2013 (1) SACR 507 (WCC). S v Mazibuko 1996 4 All SA 720 (W). S v Mhlakaza 1997 (1) SACR 515 SCA 519. S v Minnie (CC 34/2011) 2012 ZAECPEHC 53 (17 August 2012) SAFLII 493 Shalli v Attorney-General and Another (POCA 9/2011) (2013) NAHCMD 5 (16 January 2013) SAFLII Thukwane v Minister of Correctional Services and Others 2003 (1) SA 51 (T). Trustees for the Time Being of Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd [2007] 1 All SA 240 (SCA). Union of Refugee Women v Private Security Industry Regulatory Authority 2007 (4) SA 395 (CC). Van Biljon and Others v Minister of Correctional Services and Others 1997 (4) SA 441 (C). Van Eden v Minister of Safety and Security 2001 (4) SA 646 (T). Van Vuren v Minister of Correctional Services and Others 2010 (12) BCLR 1233 (CC). Van Vuuren v Minister of Correctional Services and Others 2012 (1) SACR 103 (CC). Van Vuuren v Minister of Justice and Constitutional Development and Another 2007 (8) BCLR 903 (CC). Vis v Minister of Correctional Services and Others 2013 (1283/2013) [2013] ZAFSHC 101< http://www.saflii.org/za/cases/ZAFSHC/2013/101.html> (accesses 22-07- 2013). Walters v Minister of Safety and Security, Republic of South Africa and Others (1027/2004) [2009] ZAKZDHC 25 SAFLII (25 June 2009) 494 Xaba v Ekurhuleni Metropolitan Municipality ZAGPJHC 26(2011) < http://www.saflii.org/za/cases/ZAGPJHC/2011/26.html> (accessed 02-08-2013). 1.2 Botswana Oatile v Attorney General (CVHLB-001835-07) 2010 BWHC 10 (2 March 2010) http://www.saflii.org/cgi-bin/disp.pl?file=bw/cases/BWHC/2010/10.html&query=prison (accessed 04 July 2013). 1.3 Cameroon Titiahonjo v Cameroon (2007) AHRLR 29 (HRC 2007). 1.4 Malawi Achuthan and Another (on behalf of Banda and Others) v Malawi (2000) AHRLR 144 (ACHPR 1995). 1.5 Mauritania Malawi African Association and Others v Mauritania (2000) AHRLR 149 (ACHPR 2000). 1.6 Namibia Kennedy & Others v Minister of Prisons and Correctional Services 2008 (2) NR 631 (HC). Lameck and Another v President of Republic of Namibia and Others (A 54/2011) (2012) NAHC 31 (20 February 2012 39 SAFLII 495 Namunjepo and Others Commanding Officer, Windhoek Prison and Another 2000 (6) BCLR 671 (NmS). S v Likuwa 1999 NR 151. S v Tcoeib 1996 (7) BCLR 996 (NmS). 1.7 Nigeria Civil Liberties Organisation v Nigeria (2000) AHRLR 243 (ACHPR 1999). Huri-Laws v Nigeria (2000) AHRLR 273 (ACHPR 2000). 1.8 Rwanda Organisation Mondiale Contre la Torture and Others v Rwanda (2000) AHRLR 282 (ACHPR 1996). 1.9 Zimbabwe Blanchard and Others v Minister of Justice, Legal and Parliamentary Affairs and Others 1999 (10) BCLR 1169 ZS. Conjwayo v Minister of Justice, Legal and Parliamentary Affairs and Others 1992 (2) SA 56 (ZS). De Wet v Patch NO 1976 (2) SA 316 (R). Kachingwe and Others v The Minister of Home Affairs and Others (2005) AHRLR 228 (ZwSC 2005). Woods and Another v Minister of Justice, Legal and Parliamentary Affairs and Others 1995 (1) SA 703 (Z). 496 2. Europe 2.1 United Kingdom Anton Piller KG v Manufacturing Processes Limited [1976] Ch 55. Reg v Sargeant [1974] 60 Cr App Rep 74. 2.2 European Court of Human Rights A.B. v Russia 14 October 2010 (no. 1439/06). Alver v Estonia 8 November 2005 (no. 64812/01). Ananyev and Others v Russia 10 January 2012 (nos. 42525/07 and 60800/08). Çoşelav v Turkey 9 October 2012 (no. 1413/07). D.G. v Poland 12 February 2013 (no. 45705/07). Dickson v United Kingdom [GC] 4 December 2007 (no. 44362/04). Dybeku v Albania 18 December 2007 (no. 41153/06) (2007). Edwards v UK 16 December 1992 (no. 13071/87). El Shennawy v France 20 January 2011 (no. 51246/08). Ezeh and Connors v United Kingdom [GC] 9 October 2003 (no.s 39665/98, 40086/98). Florea v Romania 14 September 2010 (no. 37186/03). Frérot v. France 12 June 2007 (no. 70204/01). Gülay Çetin v Turkey 05 March 2013 (no. 44084/10). Horych v Poland 17 April 2012 (no. 13621/08). Hurtado v Switzerland 28 January 1994 (no. 17549/90). Ilascu and Others v Moldova and Russia [GC] 8 July 2004 (no. 48787/99). Iwańczuk v Poland 15 November 2001 (no. 25196/94). 497 Jalloh v Germany [GC] 11 July 2006 (no. 54810/00). Kalashnikov v Russia 15 July 2002 (no. 47095/99). Khudobin v Russia 26 October 2006 (no. 59696/00). Kucheruk v Ukraine 06 September 2007 (no. 2570/04). Kudla v Poland 26 October 2000 (no. 30210/96). Logvinenko v. Ukraine 14 October 2010 (no. 13448/07). M.S. v the United Kingdom 3 May 2012 (no. 24527/08). Mandic and Jovic v Slovenia 20 October 2011 (nos. 5774/10 and 5985/10). McKay v the United Kingdom [GC] 3 October 2006 (no. 543/03). Modârcă v Moldova 10 May 2007 (no. 14437/05). Mouisel v France 14 November 2002 (no. 67263/01). Nevmerzhitsky v Ukraine 20 September 2012 (no. 54825/00). Pavalache v Romania 18 October 2011(no. 38746/03). Peers v Greece 19 April 2001 (no. 28524/95). Piechowicz v Poland 17 April 2012 (no. 20071/07). Popov v Russia 13 July 2006 (no. 26853/04). Premininy v. Russia 10 February 2011 (Application no. 44973/04). Price v the United Kingdom 10 July 2001 (no. 33394/96). Raffray Taddei v France 21-12-2010 (no. 36435/07). Ramirez Sanchez v. France [GC] 4 July 2006 (no. 59450/00). Renolde v France 16 October 2008 (no. 5608/05). Salakhov and Islyamova v Ukraine 14 March 2013 (no. 28005/08). Satik and Others v Turkey 10-10-2000 (no.31866/96). Štrucl and Others v Slovenia 20 October 2011 (nos. 903/10, 6003/10 and 6544/10). Torreggiani and Others v Italy 8 January 2013 (no. 43517/09). 498 Trepashkin v Russia 19 July 2007 (no. 36898/03). Valašinas v Lithuania 24 July 2001 (no. 44558/98). Vlasov v Russia 12 June 2008 (no. 78146/01). X v Turkey 9 October 2012 (no. 24626/09). Young v United Kingdom 16 January 2007 (no. 60682/00) 3. United States of America Agron v Montanye 392 F.Supp. 454 (W.D.N.Y. 1975). Bell v Wolfish 441 U.S. 520 (1979). Block v Rutherford 468 U.S. 576 (1984). Bounds v Smith 430 U.S. 817 (1977). Brock v Warren County 713F. Supp. 238 (E.D. Tenn., 1989). Brown v Plata, 131 S. Ct. 1910, 1923 (2011). Butler v Dowd 979 F.2d 661 (8th Cir., 1992). City of Canton v Harris 489 U.S. 378 (1989). Colman v Vasquez 142 F.Supp.2d 226 (D. Conn., 2001). Cortes-Quinones v. Jimenez-Nettleship 842 F. 2d 556, 558 (CA1). Dodge v County of Orange 204 F.R.D. 65 S.D.N.Y., 2002. Estelle v Gamble 429 U. S. 97 (1976). Everson v Michigan Department of Corrections 232 F.Supp.2d 864 (E.D. Mich., 2002. Farmer v Brennan 511 U.S. 825 (1994). Furman v Georgia 408 US 238 344-5 (1972). Gates v Collier 501 F.2d 1291 (5th Cir., 1975). 499 Harris v Thigpen 941 F 2d 1495. Helling v McKinney 509 U.S. 25 (1993). Hill v Marshall 962 F.2d 1209 (6th Cir., 1992). Holt v Starver 309 F. Supp. 362 (ed. Ark, 1970). Hudson v Palmer 468 U. S. 517, 526–527 (1984). Hudson v McMillian 503 U. S. 1 (1992). Jordan v Gardner 986 F.2d 1521 (9th Cir.1993). Jordan v Fitzharris 257 F. Supp. 674 (1966). Kaimowitz v Department Of Mental Health For The State Of Michigan No 73.19434.Aw (Mich. Cir. Ct., Wayne County, July 10, 1973). Lewis v Casey 518 U.S. 343 (1996). Missouri v Jenkins 495 U.S. 33 (1990). Mistretta v United States 488 U.S. 361 (1989). Morales v Turman 430 U.S. 322 (1977). Newman v Alabama 503 F.2d 1320 (5th Cir., 1974). O’Connor v Donaldson 422 U.S. 563 (1975). Ohlinger v Watson 652 F.2d 775 (9th Cir.1980). Overton v Bazzetta 539 U.S. 126 (2003). Padgett v Stein 406 F. Supp. 287 (M.D. Pa. 1976). People v Feagley 14 Cal. App..3d 338. Plata v Schwarzenegger 603 F.3d 1088 (9th Cir. 2010). Redman v County of San Diego 942 F.2d 1435 (9th Cir., 1991). Rhodes v Chapman 452 U.S. 337 (1981). Sandin v Conner 515 U.S. 472 (1995). 500 Sinclair v Henderson 331 F. Supp. 1123 (E.D. La., 1971). Sostre v Mc Ginnis 442 F.2d 178 (2d Cir. 1971). St Claire v Cuyler 634 F.2d 109 (3d Cir. 1980). Stone v San Francisco 968 F.2d 850 (9th Cir., 1992). Tapia v US 131 S. Ct. 2382-2011. Taylor v Perini 503 f2d 899. Trop v Dulles 356 U. S. 86, 101 (1958). Tucker v Evans 276 F.3d 999 (8th Cir. 2002). Turner v Safley 482 U.S. 78 (1987). Washington v Harper 494 U.S. 210 (1990). Weber v Dell 804 F.2d 796 (2d Cir., 1986). Whitley v Albers 475 US 312 (1986). Williams v Vincent 508 F.2d 541 (2d Cir., 1974). Wilson v Seiter 111 S. Ct. 2321 (1991). Wolff v McDonnell 418 U.S. 539 (1974). Wright v Mc Mann 387 F.2d 519 (2d Cir. 1967). Yeskey v Commonwealth of Pennsylvania 524 U.S. 206 (1998). 3.1 Inter-American Court of Human Rights Hilaire, Constantine and Benjamin et al v Trinidad and Tobago Inter-American Court of Human Rights Series C No 94 (21 June 2002), the Inter-American Court of Human Rights. Haney “Summary of Expert Testimony” < http://rbgg.com/wp- content/uploads/_Haney,%20Dr.%20Craig%20%283201%29,%2010-30- 08,%20OCR.PDF> (accessed 01-03-2013). 501 TABLE OF STATUTES 1. Africa 1.1 Malawi Prison Bill, 2003. Prison Regulations, 2003. 1.2 Nigeria Law 7/2000: A law to Establish Shari`a Courts in Jigawa State, Sharia Penal Code, 2000 (Nigeria). 1.3 South Africa Child Justice Act 75 of 2008. Children’s Act 38 of 2005. Companies Act 71 of 2008. Competition Act 98 of 1998. Constitution of the Republic of South Africa 108 of 1996. Constitution of the Republic of South Africa Act 200 of 1993. Consumer Protection Act 68 of 2008. Correctional Services Act 111 of 1998. Correctional Services Act 8 of 1959. Correctional Services Amendment Act 25 of 2008. Correctional Services Regulations GN R 323 in GG 35277 of 25-04- 2012. Criminal Law Amendment Act 105 of 1997. Criminal Procedure Act 51 of 1977. Defence Act 42 of 2002. Electoral Act 73 of 1998. Financial Advisory and Intermediary Services Act 37 of 2002. Financial Service Ombudscheme Act 37 of 2004. Income Tax Act 58 of 1962. 502 Labour Relations Act 66 of 1995. Legal Proceedings against Organs of State Act 40 of 2002. Maintenance Act 23 of 1963. Mediation in Certain Divorce Matters Act 24 of 1987. Military Discipline Supplementary Measures Act 16 of 1999. National Credit Act 34 of 2005. Patents Act 57 of 1978. Prescription Act No 68 of 1969. Promotion of Administrative Justice Act 3 of 2000. Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. Rental Housing Act 50 of 1999. Restitution of Land Rights Act 22 of 1994. 2. America 2.1 Canada Corrections and Conditional Release Act 1992. Corrections and Conditional Release Regulations 1992. 2.2 Colombia Penitentiary Code, 1993 amended in 1997, 1999 and 2004. 2.3 Peru Penitentiary Code 1991. 2.4 United States of America Prison Litigation Reform Act 18 U.S.C. § 3626 (1997). 503 3. Europe 3.1 Germany Act Concerning the Execution of Prisons Sentences and Measures of Rehabilitation and Prevention Involving Deprivation of Liberty (Prison Act), 1976 amended in 1989 and 1990. Constitutio Criminalis Carolina of 1532 of the German Empire. 3.2 Netherlands Penitentiary Principles Act, 1999. 3.3 Rome Theodosian Code dated 320 CE. 3.4 United Kingdom Act For Relief for the Poor 1601. Act For Setting the Poor on Work 1576. Act For the Relief of the Poor 1597. Penitentiary Act of 1779. United Kingdom Prison Act 1952. 4. New Zealand Children, Young Persons and Their Families Act 24 of 1989. Victims’ Rights Act 39 of 2002. Sentencing Act 9 of 2002. 504 TABLE OF INTERNATIONAL CONVENTION TREATIES, INSTRUMENTS AND STANDARDS 1. Regional 1.1 Africa African (Banjul) Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982). Resolution on Guidelines And Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment In Africa. The Robben Island Guidelines. The Kampala Declaration on Prison Conditions in Africa and Plan of Action. Adopted in 1996 at the Kampala International Seminar on prison conditions in Africa. Annexed to the ECOSOC Resolution 1997/36 on International cooperation for the improvement of prison conditions, adopted at the 36th plenary meeting on July 21st, 1997. ACHPR /Res.64(XXXIV)03: Resolution On The Adoption Of The “Ouagadougou Declaration And Plan Of Action On Accelerating Prison And Penal Reform In Africa” (2003). 1.2 America Organization of American States (OAS), American Convention on Human Rights, "Pact of San Jose", Costa Rica, 22 November 1969. American Declaration of the Rights and Duties of Man. Adopted by the nations of the Americas at the Ninth International Conference of American States in Bogotá, Colombia, in April 1948. 505 Inter-American Convention to Prevent and Punish Torture Adopted by Organization of American States on 9 December 1985. 1.3 Europe The Convention for the Protection of Human Rights and Fundamental Freedoms, (European Convention on Human Rights) 1950. Council of Europe Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules. 2. International 2.1 United Nations Basic Principles for the Treatment of Prisoners Adopted and proclaimed by General Assembly resolution 45/111 of 14 December 1990. Basic Principles on the Role of Lawyers, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 118 (1990). Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 112 (1990). Basic principles on the Use of Restorative Justice Programmes in Criminal Matters, ECOSOC Res. 2000/14, U.N. Doc. E/2000/INF/2/Add.2 at 35 (2000). Body of Principles for the Protection of All Persons under any form of Detention or Imprisonment adopted by General Assembly resolution 43/173 of 9 December 1988. 506 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly resolution 39/46 of 10 December 1984. Code of Conduct for Law Enforcement Officials adopted by General Assembly resolution 34/169 of 17 December 1979. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by General Assembly resolution 39/46 of 10 December 1984. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984. International Convention on the Elimination of All Forms of Racial Discrimination. Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965 entry into force 4 January 1969. International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976. Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by General Assembly resolution 34/169 of 18 December 2002. Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by General Assembly resolution 34/169 of 18 December 1982. Protection of All Persons under Any Form of Detention or Imprisonment adopted by General Assembly resolution 43/173 of 9 December 1988. 507 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984. UN Human Rights Committee General Comment 21. Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment adopted by General Assembly resolution 57/199 on 18 December 2002 and entered into force on 22 June 2006. Universal Declaration of Human Rights GA Res 217A (III), 10 December 1948, 3 UN GAOR Supp (No. 11A) 71, UN Doc A/810. Standard Minimum Rules for the Treatment of Prisoners Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. 508 DISSERTATIONS Hesselink-Louw “Criminological Assessment of Prison Inmates: A Constructive Mechanism Towards Offender Rehabilitation” DPhil thesis UNISA (2004). Jonson “The Impact of Imprisonment of Reoffending: A Meta-Analysis (2010) unpublished doctoral dissertation, University of Cincinnati, OH. 509 TABLE OF OFFICIAL SOURCES 1. Regional 1.1 Africa 1.1.1 South Africa Commission of Inquiry into Alleged Incidents of Corruption, Maladministration, Violence or Intimidation into the Department of Correctional Services Appointed by Order of the President of the Republic of South Africa in Terms of Proclamation No 135 of 2001, as amended. Commission of Inquiry Into Alleged Incidents of Corruption, Maladministration, Violence or Intimidation Into The Department of Correctional Services Appointed By Order of The President of The Republic of South Africa In Terms of Proclamation No. 135 of 2001, As Amended (the Jali report). Consolidated Practice Notes, Western Cape High Court, Cape Town Rule 24. “Draft Discussion Paper: Hiv/Aids, Human Rights and Access to Justice” Department of Justice & Constitutional Development (2009). Executive Summary of the 2009 – 2010 Public Attitudes towards Crime, Punishment and Rehabilitation Survey, National Institute for Crime Prevention and the Reintegration of Offenders, NICRO 2010. Draft White Paper on Corrections (2003). Erasmus "Annual Report for the period 1 April 2006 to 31 March 2007 submitted to Mr Thabo Mbeki, President of the Republic of South Africa Mr Ngconde Balfour, Minister of Correctional Services and Ms Loretta Jacobus, Deputy Minister of Correctional Services by The Acting Inspecting Judge of Prisons Judge Nathan Charles Erasmus in compliance with section 90 (4) of the Correctional Services Act, 510 Act 111 of 1998" (31-03-2007) Judicial Inspectorate for Correctional Services House of Commons Parliamentary Papers. Cape of Good Hope. Correspondence with the Governor of the Cape of Good Hope, relative to State of the Kafir Tribes on Eastern Frontier, 50, Sir Harry Smith, 7 January 1848. Hurter van Zyl “Annual Report for the period 1 April 2008 to 31 March 2009 submitted to Mr Jacob Gedleyihlekisa Zuma, President of the Republic of South Africa and Ms Nosiviwe Mapisa-Nqakula, Minister of Correctional Services and Ms Hlengiwe Buhle Mkhize, Deputy Minister of Correctional Services in compliance with section 90(4) of the Correctional Services Act, Act 111 of 1998” < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202008%20- %202009.pdf > (accessed 28-04-2013). Hurter van Zyl “Annual Report for the period 1 April 2009 to 31 March 2010 submitted to Mr Jacob Gedleyihlekisa Zuma, President of the Republic of South Africa and Ms Nosiviwe Mapisa-Nqakula, Minister of Correctional Services and Ms Hlengiwe Mkhize, Deputy Minister of Correctional Services in compliance with section 90 (4) of the Correctional Services Act, Act 111 of 1998” < http://judicialinsp.dcs.gov.za/Annualreports/Annual%20Report%202009%20- 2010.pdf > (accessed 28-04-2013). Hurter van Zyl “Annual Report for the period 1 April 2010 to 31 March 2011 submitted to Mr Jacob Gedleyihlekisa Zuma, President of the Republic of South Africa and Ms Nosiviwe Mapisa-Nqakula, Minister of Correctional Services and Dr. Ngoako Ramatlhod, Deputy Minister of Correctional Services in compliance with section 90 (4) of the Correctional Services Act, Act 111 of 1998” Tshabalala “Annual Report for the period 1 April 2011 to 31 March 2012 submitted to Mr Jacob Gedleyihlekisa Zuma, President of the Republic of South Africa and The 511 Honourable Mr. Sibusiso Ndebele Minister of Correctional Services and The Honourable Dr. Ngoako Ramatlhodi Deputy Minister of Correctional Services in compliance with section 90(4) of the Correctional Services Act, Act 111 of 1998” Legal Aid Guide (2012) 12th ed SA Law Commission Fifth Interim Report on Aspects of The Law Relating To Aids The Need For A Statutory Offence Aimed At Harmful HIV-Related Behaviour Project 85 Report (2001) 137. Uniform Rules of Court, Rules Regulating The Conduct of The Proceedings of The Several Provincial and Local Divisions of The High Court of South Africa. White Paper on Corrections in South Africa (2005). White Paper on the Policy of the Department of Correctional Services in the New South Africa (1994). Zuma “Address by His Excellency President Jacob Zuma at the Freedom Day Celebrations, Union Buildings, Pretoria” (2012) South African Government Information, Speeches and Statements, 27 April 2012 1.2 America 1.2.1 Canada Bunge, Johnson and Baldé “Crime and Justice Research Paper Series: Exploring Crime Patterns in Canada” (06-2005) Canadian Centre for Justice Statistics and Time Series Research and Analysis Centre Statistics Canada 512 Dell, Sinclair and Boe “Adult Male Offenders in Canada: Recent Trends” (12-1998) Correctional Services Cananda Research Branch Corporate Development Gendreau, Goggin and Cullen “The Effects of Prison Sentences on Recidivism” Centre for Criminal Justice Studies, University of New Brunswick, and Francis T. Cullen, Department of Criminal Justice, University of Cincinnati King “Integrated Adult Restorative Justice Pilot Project” John Howard Restorative Justice Program 2011< http://ns.johnhoward.ca/pdf/IARJPP%206%20final.pdf> (accessed 29-08-2013). Public safety Canada for Solicitor General of Canada < http://www.ccoso.org/library%20articles/200201_Gendreau_e.pdf> (accessed 12-03- 2013). Smith, Goggin and Gendreau “The Effects of Prison Sentences and Intermediate Sanctions on Recidivism: General Effects and Individual Differences” (2002) Corrections Research and Development, Solicitor General of Canada 1.2.2 United States of America Beck and Shipley “Recidivism of Prisoners Released in 1983” (1989) Bureau of Justice Statistics, U.S. Department of Justice, April 1 The reconviction rate is 47% Beck and Shipley “Recidivism of Prisoners Released in 1983” (1989) Bureau of Justice Statistics Special Report U.S. Department of Justice. 513 Bureau of Justice Statistical Study “Reentry Trends in the U.S” Bureau of Justice Statistical Study (1994) Cullen and Gendreau “Assessing Correctional Rehabilitation: Policy, Practices, and Prospects” in Homrey: Washington D.C. U.S. Department of Justice, National Institute of Justice (ed) Criminal Justice 2000: Policies, Processes, and Decisions of the Criminal Justice System (2000) Vol 3. Cullen and Gendreau Cullen and Gendreau Federal Bureau of Prisons “Trulinks FAQ” (17-04-2013) Federal Bureau of Prisons:An agency of the U.S. Department of Justice Gendreau, Goggin and Cullen “The Effects of Prison Sentences on Recidivism” Centre for Criminal Justice Studies, University of New Brunswick, and Francis T. Cullen, Department of Criminal Justice, University of Cincinnati Haney “Summary of Expert Testimony” < http://rbgg.com/wp- content/uploads/_Haney,%20Dr.%20Craig%20%283201%29,%2010-30- 08,%20OCR.PDF> (accessed 01-03-2013). 514 Haney “The Psychological Impact of Incarceration: Implications for Post-Prison Adjustment” (2001) From Prison to Home: The Effect of Incarceration and Reentry on Children, Families, and Communities, U.S. Department of Health and Human Services (HHS) http://aspe.hhs.gov/hsp/prison2home02/haney.htm> (accessed 24- 06-2013). Harer “Recidivism Among Federal Prisoners Released in 1987” Federal Bureau of Prisons Office of Research and Evaluation Langan and Levin “Recidivism of Prisoners Released in 1994” (2002) Washington, DC: Bureau of Justice Statistics, U.S. Department of Justice Memorandum accompanying order of reference Taylor v Perini 503 f2d 899. Plata v Schwarzenegger docket no. 3:01-cv-01351-TEH (N.D. Cal.), (2011) < http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf> (accessed 2-03-2013) Docket no. 3:01-cv-01351-THE. Order of Court. Reentry Trends in the U.S. Recidivism Sherman, Gottfredson, MacKenzie, Eck, Reuter and Bushway “Preventing Crime: What Works, What Doesn’t, What’s Promising” Report to the United States Congress prepared for the National Institute of Justice by the Department of Criminology and Criminal Justice, University of Maryland (1997) Washington: Office of Justice Programs 515 1.3 Europe CPT 11th General report [CPT/inf (2001)16]. CPT 2nd General Report [CPT/inf (92)3]. CPT 3rd General Report [CPT/Inf (93) 12]. 11th General Report [CPT/Inf (2001) 16]. Costelloe, Langelid and Wilson “Survey on Prison Education and Training in Europe – Final Report” European Commission (July 2012) European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. 1.3.1 United Kingdom Councell “Prison Statistics England and Wales 2002” (2003) London: Home Office Research, Development, and Statistics Directorate http://www.archive2.official- documents.co.uk/document/cm59/5996/5996.pdf (accessed 13-03-2013). Sanjit and Al Nowaihi “The Behavioral Economics of Crime and Punishment” Discussion Papers in Economics 10/14, Department of Economics, University of Leicester 2010. < http://www.le.ac.uk/ec/research/RePEc/lec/leecon/dp10-14.pdf> accessed 12-03-2013). Von Hirsch, Bottoms, Burney and Wikstrom “Criminal Deterrence and Sentence Severity: An Analysis of Recent Research” (1999) The Institute of Criminology at Cambridge University study commissioned by the Home Office 1.4 Australia Government of Western Australia "Policy Directive 2: Use of Computers by Prisoners" (25-o6-2010) Government of Western Australia, Department of Corrective 516 Service 1.5 New Zealand Nadesu “Reconviction Patterns of Released Prisoners: A 60-months Follow-up Analysis" (2009) New Zealand Department of Corrections The New Zealand Ministry of Justice “The New Zealand Criminal Justice System And Restoration” 2. International 2.1 United Nations Møller, Stöver, Jürgens, Gatherer and Nikogosian “Health in Prisons A WHO Guide to the Essentials in Prison Health” (2007) vii. United Nations Office On Drugs And Crime Handbook on Restorative Justice Programmes (2006) 10. World Health Organisation Europe Health in Prisons “A WHO Guide to Essentials in Prison Health” http://www.euro.who.int/__data/assets/pdf_file/0009/99018/ E90174.pdf (01-03-2013). 517 TABLE OF OTHER SOURCES Clear “Backfire: When Incarceration Increases Crime” (1996) 3 Journal of the Oklahoma Criminal Criminal Justice Research Consortium 7 12 < https://www.ncjrs.gov/App/Publications/abstract.aspx?ID=175331> (accessed 11-03- 2013). Dissel and Ellis “Reform and Stasis: Transformation in South African Prisons” (2002) Centre for Violence and Reconciliation (CSVR) Swiss Federal institute of Technology Zurich Gear and Ngubeni “Daai Ding: Sex, Sexual Violence and Coercion in Men's Prisons” Centre for the Study of Violence and Reconciliation Giffard and Muntingh “The Effect of Sentencing on The Size of The South African Prison Population” (October 2006) Civil Society Prison Reform Initiative Report commissioned by the Open Society Foundation for South Africa Human Rights Watch “Prison Conditions in South Africa” Human Rights Watch 518 International Centre for Prison Studies “Entire world - Prison Population” (2013) Totals J Contardo M Tolbert “Prison Postsecondary Education: Bridging Learning from Incarceration to the Community" Urban Institute: Research of Record 6 (03-03- 2008) Jules-Macquet “Executive Summary of the 2009-2010 Public Attitudes towards Crime, Punishment and Rehabilitation” (2009) NICRO Executive Summary of 2009 Public Attitudes towards Crime Research Report “Mr Drum Goes to Jail” (1954) March Drum. Muller “Social Institutions: Stanford Encyclopedia of Philosophy” (2011) Murray “Making Rehabilitation Work: American Experience of Rehabilitating Prisoners” (2002) Civitas National PREA Resource Centre "Prison Rape Elimination Act" (2013) Oppler “Assessing the State of South African Prisons” (1998) Vol 7 No 4 African Security Review. 519 “Prison Conditions In South Africa” (1994) Human Rights Watch Sloth-Nielsen “Women and Prisons in South Africa” (2005) Civil Society Prison Reform Initiative Steinberg “Nongoloza's Children: Western Cape prison gangs during and after apartheid” Centre for the Study of Violence and Reconciliation < http://www.csvr.org.za/docs/correctional/nongolozaschildren.pdf > (accessed 02-05- 2013). Steinberg “Prison Overcrowding and the Constitutional Right to Adequate Accommodation in South Africa” Institute for Security Studies (ISS) and Centre for the Study of Violence and Reconcilation (2004) http://www.csvr.org.za/docs/correctional/prisoncovercrowding.pdf (accessed 10-12- 2010). 520 I 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 11 MARCIANO PLATA, et aI., $., 12 NO. COI-1351 TEH -:: Plaintiffs, 0 U '§'" 13 CLASS ACTION <8 v. ....~ u~ ORDER APPOINTING $., '- - 0 14 rIJ RECEIVER .... .~ Q- ARNOLD SCHWARZENEGGER, is 15 rIJ et aI., Q,I E ..c ~ t:" 16 0 Defendants. z rJ'1- 28 ! As the October 3, 2005 ruling notes, Pelican Bay State Prison is exempted from this action and instead falls under this Court's jurisdiction in the separate case of Madrid v. Woodford, C90-3094 TEH. 1 level of medical care provided to California's 166,000 inmates up to federal constitutional 2 standards. Having undergone a thorough and successful search process, the Court HEREBY 3 APPOINTS Mr. Robert Sillen to serve as the Receiver in this case, at the pleasure of the 4 Court, effective Monday, April 17,2006. A copy of the Receiver's curriculum vitae is 5 attached to this Order. 6 In furtherance of the Receivership, the Court sets forth the Receiver's duties and 7 powers as follows: 8 9 I. DUTIES OF THE RECEIVER 10 A. Executive Management 11 The Receiver shall provide leadership and executive management of the California -"'" 12 prison medical health care delivery system with the goals of restructuring day-to-day =0 OJ U .§ @ 13 operations and developing, implementing, and validating a new, sustainable system that 0; ....~ u 4-< -0 14 provides constitutionally adequate medical care to all class members as soon as practicable. "'"~ ~ .... u -.~ ~ 6 15 To this end, the Receiver shall have the duty to control, oversee, supervise, and direct all ~ ~ E ..c0) ~ t: 16 administrative, personnel, financial, accounting, contractual, legal, and other operational 0 00.- z 0) "0- ;S 17 functions of the medical delivery component of the CDCR...... ~ 0 - "" 18 ~= 19 B. Plan of Action 20 The Receiver shall, within 180 - 210 calendar days of the effective date of 21 appointment, develop a detailed Plan of Action designed to effectuate the restructuring and 22 development of a constitutionally adequate medical health care delivery system. This Plan 23 shall include recommendations to the Court of which provisions of the (1) June 13,2002 24 Stipulation for Injunctive Relief, and (2) September 17, 2004 Stipulated Order re Quality of 25 Patient Care and Staffing Order and Injunction (and/or policies or procedures required 26 thereby), should be carried forward and which, if any, should be modified or discontinued 27 due to changed circumstances. The Plan of Action shall also include a proposed time line for 28 2 1 all actions and a set ofmetrics by which to evaluate the Receiver's progress and success. 2 The Receiver shall update and/or modify this Plan as necessary throughout the Receivership. 3 Pending development of the Plan of Action, the Receiver shall undertake immediate 4 and/or short term measures designed to improve medical care and begin the process of 5 restructuring and development of a constitutionally adequate medical health care delivery 6 system. 7 8 C. Budgeting and Accounting 9 The Receiver shall determine the annual CDCR medical health care budgets 10 consistent with his duties and implement an accounting system that meets professional 11 standards. The Receiver shall develop a system for periodically reporting on the status of the I. 12 CDCR's medical health care budget and shall establish relations with the California Office of - oj 0= U E @ 13 Inspector General to ensure the transparency and accountability of budget operations. -.; .....~ u I. '- - 0 14 rI:J...... - .~ ~ 15 D. Reporting rI:J. i5 ~ E ..cOJ ~ t 16 The Receiver shall provide the Court with bimonthly progress reports. These reports 0 rJl- z OJ "'0- -s 17 shall address: (a) all tasks and metrics contained in the Plan and subsequent reports, with ... ~ 0 ..... W-. - 18 degree of completion and date of anticipated completion for each task and metric, ~= 19 (b) particular problems being faced by the Receiver, including any specific obstacles 20 presented by institutions or individuals, (c) particular successes achieved by the Receiver, 21 (d) an accounting of expenditures for the relevant period, and (e) all other matters deemed 22 appropriate for judicial review. 23 The Receiver shall meet with the Court on a bimonthly basis shortly following the 24 issuance of each report and shall remain in contact with the Court throughout the 25 Receivership on an informal, as needed, basis. 26 27 28 3 1 II. POWERS AND AUTHORITY OF THE RECEIVER 2 The Receiver shall have all powers necessary to fulfill the above duties under this 3 Order, including, but not limited to: 4 A. General Powers 5 The Receiver shall exercise all powers vested by law in the Secretary of the CDCR as 6 they relate to the administration, control, management, operation, and financing of the 7 California prison medical health care system. The Secretary's exercise of the above powers 8 is suspended for the duration of the Receivership; it is expected, however, that the Secretary 9 shall work closely with the Receiver to facilitate the accomplishment of his duties under this 10 Order. 11 -lo. 12 B. Personnel 0 = "§" u c8 13 The Receiver shall have the power to hire, fire, suspend, supervise, promote, transfer, ~ ~ .- U lo. '- - 0 14 discipline, and take all other personnel actions regarding CDCR employees or contract rLJ ~ .--"~t;: ~ 15 employees who perform services related to the delivery of medical health care to class rLJ is ~ E ..c" ~ t: 16 members. The Receiver shall have the power to establish personnel policies and to create, 0 rJ'J.- z "0- .s" 17 abolish, or transfer positions related to the delivery of medical health care to class members. ~ 0 .- ~ - 18 The Receiver also shall be empowered to negotiate new contracts and to renegotiate existing ~= 19 contracts, including contracts with labor unions, in the event that such action is necessary for 20 the Receiver to fulfill his duties under this Order. 21 22 C. Property 23 The Receiver shall have the power to acquire, dispose of, modernize, repair, and lease 24 property, equipment, and other tangible goods as necessary to carry out his duties under this 25 Order, including but not limited to information technology and tele-medicine technology. 26 27 28 4 ------~~~-~-~---- ~ 1 D. Governing State Laws, Regulations, and Contracts 2 The Receiver shall make all reasonable efforts to exercise his powers, as described in 3 this Order, in a manner consistent with California state laws, regulations, and contracts, 4 including labor contracts. In the event, however, that the Receiver finds that a state law, 5 regulation, contract, or other state action or inaction is clearly preventing the Receiver from 6 developing or implementing a constitutionally adequate medical health care system, or 7 otherwise clearly preventing the Receiver from carrying out his duties as set forth in this 8 Order, and that other alternatives are inadequate, the Receiver shall request the Court to 9 waive the state or contractual requirement that is causing the impediment. Upon receipt of 10 any such request, the Court shall determine the appropriate procedures for addressing such 11 request on a case-by-case basis. -I- 12 =0 OJ U E @ 13 E. }\ccess .-~ u -I- '-'" 0 14 The Receiver shall have unlimited access to all records and files (paper or electronic) .-fI:J .~ -~ ~ 15 maintained by the CDCR, including but not limited to all institutional, personnel, financial, fI:J is ~ E .c'" ~ t: 16 and prisoner records, as deemed necessary by the Receiver to carry out his duties under this 0 rJJ- z "'0- -5'" 17 Order. .... ~ 0 .- '"'- - 18 The Receiver shall have unlimited access to all CDCR facilities, as deemed necessary ~= 19 by the Receiver, to carry out his duties under this Order. Ordinarily, the Receiver shall 20 attempt to provide reasonable notice when scheduling such visits, but this shall not preclude 21 the Receiver from making unannounced visits to facilities or offices as the Receiver deems 22 necessary to carry out his duties under this Order. 23 The Receiver shall have unlimited access to prisoners and to line and managerial staff, 24 including the authority to conduct confidential interviews with staff and prisoners. 25 26 27 28 5 1 F. Immunity and Indemnification 2 The Receiver and his staff shall have the status of officers and agents of this Court, 3 and as such shall be vested with the same immunities as vest with this Court. 4 Additionally, Defendants shall indemnify the Receiver and members of his staff to 5 the same extent as Defendants are obligated to indemnify the Secretary of the CDCR. 6 7 III. OFFICE OF THE RECEIVER 8 A. The Receiver shall be paid a reasonable compensation for his services in an 9 amount to be approved by this Court. lOB. The Receiver shall establish an Office of the Receiver in a location to be 11 determined in consultation with the Court, with staffing necessary to fully carry out his duties -10.. 12 as set forth in this Order. Upon approval from the Court, the Receiver shall set reasonable 0= co U E @ 13 compensation and terms of service for each member of his staff, (including employees and/or t"j 6 1 of the Office of the Receiver, including but not limited to salaries, consulting fees, and the 2 costs of supplies, equipment, office space, transportation,2 and the like. The Receiver shall 3 arrange with Defendants a system for regularly replenishing the Receiver's Office Fund 4 Account. 5 F. Within 75 calendar days of the date of effective appointment, the Receiver shall 6 establish a budget for the Office of the Receiver's first year of operation. The Receiver shall 7 also establish a budget for the Office of Receiver for each subsequent year of operation, with 8 each such budget due 90 days in advance of each budget year. 9 10 IV. COSTS 11 All costs incurred in the implementation of the policies, plans, and decisions of the ...... 12 Receiver relating to the fulfillment of his duties under this Order shall be borne by -0= '" U E 13 Defendants. Defendants shall also bear all costs of establishing and maintaining the Office ...... @ C.J -;;; .- u '- ...... 0 14 of Receiver, including the compensation of the Receiver and his staff. rI:J. ~u .--.~ ~ 15 rI:J. is E ~ <1) ...... t:: ~ 1:: 16 V. LENGTH OF RECEIVERSHIP ...... z0 rJJ <1) -5 "'0 .... 17 The Receivership shall remain in place no longer than the conditions which justify it ~ ...... u..0 .-C 18 make necessary, and shall cease as soon as the Court is satisfied, and so finds in consultation ~ 19 with the Receiver, that Defendants have the will, capacity, and leadership to maintain a 20 system of providing constitutionally adequate medical health care services to class members. 21 The Court expects that as the Receivership progresses, the Receiver will attempt to engage 22 Defendants in assuming responsibility over portions of the system that are within 23 24 25 26 2When engaged in travel, the Receiver and his staff shall use their best efforts to 27 contain direct expenses in a cost-effective fashion. For example, when engaged in necessary travel, the Receiver and his staff shall, when possible, utilize advanced-purchase economy 28 airfares and reasonably priced accommodations. 7 I Defendants' demonstrated ability to perform, so that the ultimate transfer of power back to 2 the State will be transitional. 3 Prior to the cessation of the Receivership, the Receiver shall develop a Plan for Post- 4 Receivership Governance of the system, which shall include consideration of its structure, 5 funding, and governmental responsibility for its long-term operation. The Receiver shall 6 present this plan to the Court for approval and adoption as an order. 7 8 VI. COOPERATION 9 A. All Defendants, and all agents, or persons within the employ, of any Defendant in 10 this action (including contract employees), and all persons in concert and participation with 11 them, and all counsel in this action, shall fully cooperate with the Receiver in the discharge of -~ 12 his duties under this Order, and shall promptly respond to all inquiries and requests related to =0 OJ U '§ :.§ 13 compliance with the Court's orders in this case. Any such person who interferes with the ~ OJ .... U ~ '- - 0 14 Receiver's access, as set forth in section II.E., or otherwise thwarts or delays the Receiver's ....rIJ u -.~ ~ 15 performance of his duties under this Order, shall be subject to contempt proceedings before rIJ 5 Qj E ..c"-' 1:: 16 this Court. eo: 0 rJJ.- z "-' "0- -5 17 B. Counsel for Defendants shall ensure that the following state agencies are given Qj ...... w..0 - 18 prompt notice of the substance of this paragraph: the Department of Personnel ~= 19 Administration, the Department of Finance, the Department of General Services, the State 20 Personnel Board, and any other state agencies that Defendants deem should be notified. 21 Defendants shall notify the Court in writing of their compliance with this paragraph within 22 30 days of the date of this Order. 23 C. The Secretary of the CDCR shall ensure that all of the CDCR's employees and 24 agents (including contract employees) are given prompt notice of the substance of this 25 paragraph. Defendants shall notify the Court in writing of their compliance with this 26 paragraph within 30 days of the date of this Order. 27 28 8 I VII. ADVISORY BOARD 2 The Court, in consultation with the Receiver, shall appoint an Advisory Board of no 3 more than five members to assist and advise the Court and the Receiver with respect to 4 achieving the goals of the Receivership. 5 6 VIII. MODIFICATION 7 Given that this Receivership is unprecedented in scope and dimension, this Court 8 finds that flexibility will be an important element in ensuring its effectiveness. Accordingly, 9 this Order may be modified as necessary from time to time to assure the success of this 10 Receivership and the eventual return of the operation of the CDCR's medical health care 11 delivery system to the State of California. -'"" 12 0= U E'" <2 13 .-CJ ~u 4-< - 0 14 IT IS SO ORDERED. rI:l'"" u .--.~ ~ 15 rI:l is Qj E 0) ..<:: 16 Dated: February 14,2006 .. ~ t: ~ 0 r.F1- z \LTORHENDERsON 0) "0- -5 17 UNITED STATES DISTRICT JUDGE .... Qj 0 .- ro.. - 18 ~= 19 20 21 22 23 24 25 26 27 28 9 ROBERT SILLEN EDUCATIONAL BACKGROUND 1965 University of Denver, Denver, Colorado: Bachelor of Arts Degree 1972 Graduate School, Yale University: Masters of Public Health Degree CAREER EXPERIENCE 1993 - Present Executive Director Santa Clara Valley Health & Hospital System San Jose, CA 1979 - 1993 Executive Director, Hospital & Clinics Santa Clara Valley Medical Center San Jose, CA 1976 - 1979 Associate Director, Hospital & Clinics University Hospital University of California Medical Center San Diego, CA 1972 - 1976 Assistant Director University Hospital University of California Medical Center San Diego, CA 1968 - 1970 Assistant Administrator City Hospital Center at Elmhurst Elmhurst, NY 1967-1968 Director of Community and Professional Relations United States Public Health Service New York, NY 1965 - 1967 Director of Clinics United States Public Health Service New York, NY ------~------.--- DETAILS OF CAREER EXPERIENCE Executive Director, Santa Clara Valley Health & Hospital System (SCVHHS) In June, 1993, the Board of Supervisors created a full service, integrated County health care system consisting of the Santa Clara Valley Medical Center, Department of Public Health, Department of Mental Health, Department of Custody Health Services and the Department of Alcohol & Drug Services. The Santa Clara Valley Health & Hospital System is responsible for a full continuum of preventive intervention and treatment services throughout the County, both directly under County auspices and through contracts with the private sector. The system is comprised of over 6,200 employees and has an annual operating budget of nearly $1.4 billion. The Executive Director is responsible for all aspects ofthe system's operations, long range planning, private/public partnerships, community relations, capital development and information systems. The development of a cost effective, fully integrated system is essential for the successful conversion to a full-service managed care delivery system in a highly competitive environment. In addition, the Executive Director was responsible for designing and implementing a County-wide Medi-Cal Managed Care program (Local Initiative) in June, 1996 as well as the Children's Health Initiative and Healthy Kids program in January, 2000. Executive Director, Santa Clara Valley Medical Center (SCVMC) Directed, administered, and coordinated all activities of the hospital and its affiliated clinics; responsibilities included: planning and establishing major current and long range objectives, goals, and policies; maintaining good employee and medical staff relations; maintaining financial solvency of the institution; organizing the functions of the Medical Center and clinics through appropriate departmentalization and delegation of duties; exercising day-to-day responsibility for the internal operations ofthe hospital; and directly coordinating all external activities and relations affecting the hospital and clinics. The Santa Clara Valley Medical Center is a SOO-bed regional medical center with an operating budget of over $800 million and 4,500 full-time equivalent employees. Services range from community based primary care satellite clinics to tertiary regional services such as: Regional Bum, Spinal Cord Injury, and Head Trauma; Neonatal Intensive Care; Poison Control Center; Trauma Center; Life Flight Helicopter; and Custody (Jail) Health Services. Associate Director, University Hospital, University of California Medical Center, San Diego Administrative and budgetary responsibility for the following professional services: Anesthesia, Medicine, Neurology, Surgery. Responsibility included approval and control of operating and capital budgets, program planning and implementation and identification and solution of operational problems. Relate directly to Chairpersons and Division Chief of above indicated departments. Responsible for operation of hospital planning office, including overall administrative responsibility for short- and long-range planning. Responsibilities included formulation of planning methodology, acquisition of capital resources, and coordination of all hospital construction, renovation, and space allocation. Responsible for the activities of the Assistant Director, Hospital and Clinics, for a variety of professional services and non-professional departments including: Cardiac Catheterization Laboratory, Gastroenterology, Material Handling, Medicine, Neurology, Pathology, Pharmacy, Physical and Occupational Therapy, Radiology, Respiratory Therapy, Surgery. Assistant Administrator, City Hospital at Elmhurst Assisted the Administrator of this 1,000-bed teaching hospital in the general administration of a variety of professional and non-professional services, including: Anesthesia, Hematology, Inhalation Therapy, Pathology, Radiology, Social Services, Medical Records, and Medical Library. Directly responsible for administration of internship and residency training programs, and administration of Medicare compliance program. ACADEMIC APPOINTMENTS Assistant Clinical Professor, Department of Community Medicine, University of California, San Diego Clinical Lecturer, Department of Community Medicine, University of California, San Diego PROFESSIONAL ASSOCIATIONS AND MEMBERSHIPS Children & Families First Commission of Santa Clara County, Commissioner: 2000 - Present California Association of Public Hospitals & Health Systems, Board of Directors, Current Member; Current and Past Chairman: 2003, 1984, 1985, 1989 National Association of Public Hospitals & Health Systems, Current Member; Past Chairman: 1987 Emergency Housing Consortium, Board of Directors, Member: 1998-2001 American Cancer Society, Board of Directors, Member: 2000,2001 California Association of Hospitals and Health Systems, Board of Trustees California Association of Hospitals and Health Systems, Chairperson, CAHHS Committee on Finance, 1990 California Association of Hospitals and Health Systems, Marketplace Task Force, 1989; Blue Ribbon Committee, 1990 American Hospital Association American Hospital Association, Governing Council, Section for Metropolitan Hospitals Hospital Council of Northern California, Board of Directors California Hospital Association County Hospital Committee Hospital Conference of Santa Clara County: President, 1986 Hospital Council of Northern California, Planning Committee Hospital Council of Northern California, Finance Committee National Association of Counties, Health and Education Steering Committee; Subcommittee, Health Care Cost Containment; Subcommittee, Long Term Care ROBERT SILLEN Major Accomplishments Planned, financed and implemented major capital expansion of Medical Center: $50 million patient care tower, including new and expanded Comprehensive Emergency Room; Adult Medical, Surgical and Coronary Care Intensive Care Units, Regional Bum Center, post-partum maternity; clinical lab expansion; 40 bed telemetered Transitional Care Unit; Newborn Nursery; roof-top heliport. $12 million ambulatory care/physician office building (Valley Health Center). This practice facility provides a highly competitive practice site enabling our faculty to expand our base of privately insured patients. 42,000 square foot facility includes: decentralized registration/waiting, patient care modules including exam rooms, consult rooms and offices; pharmacy; laboratory; radiology services; medical records. This facility is the locus of our prepaid health plan (Valley Health Plan) for County and other public employees. $5 million physician/administrative complex that houses our faculty practice plan, physician offices and administrative support offices. Psychiatric Facility Expansion - As part of the same bond issue that financed the West Wing patient tower we have built a new 54 bed acute psychiatric facility ($8 million) and purchased a free-standing, distinct part psychiatric SNF ($4 million). Creation of a Magnetic Resonance Imaging Center through a joint venture. A Campus Development Plan has been funded and initiated which will culminate in the completion of the following projects during the next three years: Additional Patient Care Tower; 1,500 car parking structure(s); Ambulatory Care Facility; Alzheimers Treatment and Day Care Center; Long Term Care facility; new power plant and laundry; Administrative support and physician office building. The Campus Development effort will cost over $500 million. $250 million Patient Care Tower (completed in 1999). $250 million Specialty Inpatient Center (to be completed in 2008). Four Community Based Primary Care Centers ($200 million). Program Development: Designation as Level I Trauma Center Occupational and Industrial Medicine Program. Developed a program for and consummated contracts with union health and welfare funds and corporate entities in Silicon Valley as well as governmental agencies and school districts. Valley Health Plan (VHP). Designed and implemented a prepaid health plan for County employees. This plan, licensed by the State Department of Corporations, is intended to compete with private HMO's, PPO's, IP A's and indemnity plans offered to over 13,000 County employees thus increasing our private insurance base and reducing County subsidy to the Medical Center. Since its inception, VHP has grown from 0 to 2,600 enrollees. Developed a Marketing and Public Relations Division that successfully maintained and enhanced our patient referral base, created community support and understanding and enhanced our image throughout the County and State. Created a free-standing 501(c)(3) fundraising foundation (SCVMC Foundation). The Foundation, the sole purpose of which is to raise funds and create community support for SCVMC was created in 1988. During its first year it raised over $1 million for the Medical Center. The Foundation Board is comprised of wealthy Silicon Valley corporate leaders and civic "movers and shakers." Major support has been garnered from wealthy individuals, other local foundations, corporations (IDM, Cypress Semiconductors, Applied Materials, Hewlett-Packard, Syntex to name a few). This is a unique effort for a county medical center and we are now providing consultative services to other public hospitals that want to emulate our success. Service Excellence. Successfully designed and implemented a Medical Center-wide program which has significantly enhanced intra-and-interdepartmental functioning and communications, increased employee morale, aided recruitment and retention, positively impacted operating efficiency, enhanced our patient and community relations and maintained and enhanced our patient base. Financial Performance. Despite the adverse sponsorship mix of SCVMC's patient population (60% Medi-Cal, 20% unsponsored, 5% private insurance, 15% Medicare) our financial performance has been exemplary. The County General Fund subsidy has never exceeded 10% of our total operating budget during my 16 year tenure at SCVMC. This is unique for a California county hospital, especially the third largest in the State. Our financial and clinical successes are closely related and have created an environment of full community and political support vital to our overall success. Operational Re-engineering. Implemented a full-scale work re-engineering project; the goal of which was to reduce operating expenses by $60 million over three years. This program is unique within County government in California and has the full support of the Board of Supervisors and County unions.