Prisoners' rights

• Jurisdiction: South Africa
• Author: S. Pete
• DOI: 10.10520/EJC34822
• Published date: 01 January 1997
• Date: 01 January 1997
• Pages: 206-244
• Published By: Centre for Socio-Legal Studies

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9

Prisoners’ Rights

Steve Pete *

Introduction

The years 1997 and 1998 were significant for prisoners in South Africa, as the

new democratic government struggled with the problems created by an ever

increasing prison population. The first in a series of ultra-secure ‘C Max’

prisons, designed to accommodate the most high risk offenders, came into

operation. At the other end of the spectrum, several new facilities designed

specifically for the rehabilitation of low risk offenders were completed.

However, these new facilities catered only for a small percentage of the prison

population. Most prisoners found themselves ‘warehoused’ in overcrowded

facilities throughout the country. Chronic overcrowding overshadowed much

of what transpired during the period under review.

Increasing numbers of awaiting trial prisoners gave rise to particular

problems. High crime rates and other factors brought pressure to bear on the

criminal justice system, which resulted in long delays between the arrest and

trial of many suspects.

Chronic overcrowding lent added impetus to the privatisation of parts of

the prison system. Contracts were concluded with the private sector to

design, build and manage a number of facilities. There was also discussion

about the possible conversion of ships into floating prisons, as well as talk of

converting disused mine shafts into maximum security prisons.

Prison personnel suffered from severe stress and low morale. Disturbing

reports of corruption among prison personnel continued to surface at regular

intervals, as well as allegations of brutality and racism on the part of warders.

The effects of overcrowding and lack of resources were also felt in the

area of parole and correctional supervision. Many prisoners released on

parole or sentenced to correctional supervision absconded and could not be

traced due to lack of resources. A pilot scheme for the electronic monitoring

of parolees was completed and plans made to introduce it on a large scale.

* BA LLB (University of Natal, Durban) LLM (University of Cape Town) M Phil

(University of Cambridge) Attorney of the High Court of South Africa.

Prisoners’ Rights

207

The problem of juveniles held in adult prisons while awaiting trial

continued to be a major concern. There was consensus on the desirability of

removing these juveniles from adult prisons, but this was not possible due to

lack of alternative facilities. Tensions ran high between the departments of

Welfare, Justice, and Correctional Services on this issue.

Gangs continued to conduct a reign of terror within many prisons. In some

prisons certain warders seemed to operate as extensions of the gangs. A

combination of corrupt warders and violent prison gangs resulted in the

continued existence of a serious drug problem in many prisons. The influence

of the prison gangs extended beyond the prison walls into the community,

with increasing links being formed between prison gangs and street gangs.

The entire Correctional Services Act1 was redrafted to bring it into line

with the South African Constitution. The new act contained several important

innovations, including provisions for an independent “inspecting judge” who

is empowered to act as a watchdog to ensure that prison conditions comply

with basic human rights. Legislation was also passed allowing courts to set a

certain portion of a prisoner’s sentence during which it would not be possible

for that prisoner to be paroled.

The South African Human Rights Commission emerged as a major

watchdog over human rights in prisons. There was much political tension

between this body and the Department of Correctional Services.

Problems caused by the transition from an authoritarian state to a

constitutional democracy continued to haunt the criminal justice system. One

such problem was the large number of ‘death row’ prisoners placed in limbo

after the ruling of the constitutional court in 19952 outlawing the death

penalty. Chronic overcrowding put paid to all but a few programmes aimed at

the rehabilitation of prisoners, and recidivism remained unacceptably high.

The South African public continued to regard crime as the most serious

problem facing the country. There was little public sympathy for convicted

criminals and strong support for measures limiting their privileges.

Overall, the human rights of South African prisoners continued to be

seriously compromised during the period under review. Chronic overcrowding

was clearly the main culprit. A serious a lack of resources to deal with this

problem, coupled with strong public anger directed at criminals, resulted in

much suffering amongst ordinary prisoners.

C Max’ and ‘Supermax’ Prisons

1 Act 111 of 1998

2 S v Makwanyane and Another 1995 (3) SA 391 (CC)

Steve Pete

208

The ‘C Max’ and ‘Supermax’ prisons, which began to appear in South Africa

during the period under review, were modeled on similar prisons in other parts

of the world, such as the penitentiary in Marion, Illinois, which holds the most

violent prisoners in the United States of America.3 To establish a ‘C Max’

prison, a normal maximum security prison is converted so as to render it

escape proof, whereas a ‘Supermax’ prison is designed and built from scratch.

With the violent elements removed, the authorities hoped that the rest of the

prison population could benefit from a renewed emphasis on rehabilitation.4

The Minister of Correctional Services explained the idea behind these prisons

as follows:

“We have to separate those who do not want to be rehabilitated from

those who want to change their lives and go back into the community.

We cannot rehabilitate while the criminally violent and dangerous

prisoners are mixed with the others. They pollute the environment.”5

“We believe people of that ilk should be separated from the rest of

the prison community and put in a place where they will be on their own

and pose no danger to their warders and have time to think about how

they will spend the rest of their lives.”6

Clearly, the minster regarded these prisoners as a type of infectious virus,

which needed to be isolated. He predicted that by January 1999 at least half of

South Africa’s 7000 most violent prisons would be confined in a C Max or

Supermax prison.7

South Africa’s First ‘C Max’ Prison

South Africa’s first ‘C Max’ prison was constructed by converting the old

death row cells in the Pretoria Prison. The construction work took six weeks

and cost R600 0008 It was designed to house ninety five high risk prisoners,

such as murderers, rapists and gang leaders. The convicted hit squad killer

Eugene de Kock was one of the first inmates.

Safe containment of prisoners was a priority. Whenever C Max prisoners

left the prison they were shackled to a ‘stun belt’ operated by remote-control.

The belt was capable of delivering an electric shock of

3 The Sunday Independent 22 March 1998:3.

4 Business Day 4 December 1997:6.

5 Sunday Tribune 19 October 1997:10.

6 Saturday Argus 18 October 1997:7.

7 Business Day 4 December 1997:6.

8 Beeld 23 September 1997:1.