27 OCTOBER 2010

1. BRIEFING BY THE JUSTICE CRIME PREVENTION AND SECURITY(JCPS) CLUSTER DEPARTMENTS TO THE PORTFOLIO COMMITTEE FOR CORRECTIONAL SERVICES REGARDING CORRECTIONAL CENTRES’ OVERCROWDING 27 OCTOBER 2010

2. AGENDA Introduction Capacity Inmate Population Remedial Actions Conclusion

3. INTRODUCTION That South African prisons continue to experience an overcrowding problem is well-known and acknowledged. Particularly since 2000 the gap between available prison space and the total number of prisoners has been well publicised, particularly by the Inspecting Judge of Prisons in his annual reports. The Justice Crime Prevention and Security (JCPS) Cluster as a whole has been grappling with this phenomenon as a specific focus area as it is acknowledged that the challenges in this regard is not something the Department of Correctional Services(DCS) can deal with on its own. It is therefore also contained as a priority in the JCPS Delivery Agreement (Outcome 3 - “All People of South Africa Are and Feel Safe”)in relation to various activities through which the Cluster is seeking to ensure an effective, efficient and integrated Criminal Justice System. 2

4. INTRODUCTION (cont) In strengthening the Criminal Justice System continuum, various activities are prescribed which will assist as building blocks towards finding some relief relating to the overcrowding challenges. Aspects in this regard that will be dealt with later in the presentation relate amongst others to activities in the Delivery Agreements (Output 1) such as strengthening the management of bail processes and legislation. Other activities (as contained in Output 2) that will impact positively in the future on the overcrowding of Correctional Centres, are implementation of the 7-Point Plan arising from the Criminal Justice System Review in relation to improving the efficiency and effectiveness of the Criminal Justice System; reduction of case backlogs; increase of cases finalized through diversion and Alternative Dispute Resolution Mechanisms (ADRM); management of remand detainees; reduction of the average length of time in remand detention; increased percentage of parolees; and increased rehabilitation programmes. It is clear that in SA, as elsewhere in the world, the overcrowding challenges relate to the need to find an appropriate balance between incarceration to keep the community safe and the capacity to do so from DCS side. 3

5. It should also be borne in mind that over the past few years government has continued to strengthen the criminal justice system in preventing and combating crime, in particular in relation to serious crime (such as rape, robberies, murders etc.), leading to increased remand detention and sentenced incarceration. In this regard capacity in the police (specifically visible policing and detectives) has grown considerably as attested by the increased number of crimes that were detected by police (10% year on year growth for each of the past 2 years.) INTRODUCTION (cont) • The front end of the Criminal Justice System has also been substantially improved with more crime scene detectives, more forensic capacity as well as general detective capacity. In addition more prosecutors and courts has led to an increase in cases finalised. This obviously means that DCS would have to deal with more inmates. • The JCPS Delivery Agreement places further emphasis on addressing serious and violent crime and it can be logically concluded that the pressure on accommodation in correctional centres will increase. 4

6. SAPS records indicates approximately 2 million crime-related complaints per annum on average during the past few financial years according to their annual reports. Out of these complaints, only about 34% were referred to court and the correctional centres’ population constituted about 2.5% of the arrests made by SAPS at the time. If the success rate of crime detection, court prosecutions and convictions improve, the outflow towards correctional centres will also increase. It thus remains necessary, in addition to accommodation provision, to focus on alternative ways to deal with crime and offenders. We will thus approach our presentation from a cluster perspective and will focus in particular on aspects such as alternative sentencing and diversion, the bail protocol, minimum sentencing and the increased use of plea bargaining. Integral to this approach is the efforts of agencies such as the Inspecting Judge, Legal Aid South Africa, NICRO, KHULISA and other civil society organisations contributing to cohesive and integrated interventions. INTRODUCTION (cont) 5

7. INTRODUCTION (cont) Source: SAPS 6

8. CAPACITY BY DCS TO DEAL WITH REMAND DETAINEES AND SENTENCED INCARCERATION

9. CAPACITY AND INMATE POPULATION(2006/7 TO 2010/11) • The inmate population in Correctional Service facilities has basically remained stable over the last 5 years (overcrowding remained stable (38% to 41%)) : • The daily average inmate population fluctuated between 158 000 and 162 000. • In the same time capacity (bed space) increased by 3 357 (3%); • Sentenced inmates (69.64% of population) fluctuated with a year on year averaged decrease of 890 (0.8%); • Remand Detainees (RDs) increased by an average of 3 862 (9%) over the past financial year. 8

10. INCREASED ACCOMMODATION (2009 THRU 31 MAY 2010) • For the past financial year capacity (bed space) increased by 3 357 (3%); • Western Cape is currently busy upgrading certain facilities leading to a temporary decrease in capacity but with the prospect that once upgraded there will be an additional capacity of 818. • Since March 2004 to March 2010 the capacity in correctional centres increased by 6 635 (±6%). • Further planned additional accommodation from 2010/11 – 2014/15 onwards will lead to an increase of a further 3745 beds, leading to a capacity increase to 121 905. 9

11. INMATE POPULATION IN CORRECTIONAL CENTRES

12. SENTENCED INMATES • The majority of sentenced inmates are in the category of 10 years and less (58 160/113 012 (52%)). • There has been a slight and gradual increase in the category of sentenced offenders serving sentences > 20 years (20 418 – end May 2010). 11

13. REMAND DETAINEES AS AT 31 MAY 2010 • RD's represented 30.36% of the total inmate population as at 31 May 2010. • The RD population as at 31 May 2010 is less (1%) than the 31 March 2009 RD population (49 477). • Part of the 49 030 RDs is a number of persons accommodated on behalf of DHA pending deportation. (See next slide)

14. PERSONS ACCOMMODATED IN DCS PENDING DEPORTATION BY DEPARTMENT OF HOME AFFAIRS (DHA) • The persons accommodated in this regard fall outside the CJS and in fact should be accommodated by DHA and if removed would provide further accommodation possibilities to RDs. 13

15. RD DISTRIBUTION: BAIL / NO BAIL CATEGORIES • The ‘No Bail’ category may include cases where the court has not yet decided whether bail should be granted or not (the exact numbers is not readily available). This is significant as it will impact on the number of cases that can be dealt with in terms of Sections 62 and 63 of the Criminal Procedure Act, 1997 (CPA) that is aimed at alleviating overcrowding.

16. REMAND DETENTION FACTORS RD Population Drivers • The increase in serious crimes brings with it an increase in the use of remand detention without an option of bail. • Use of detention by courts pending the finalisation of cases (in cases where there is seemed to be a risk that accused will not appear in court, or pose a danger to themselves and others, including intimidation of witnesses or present a risk of re-offending). • Length of stay: Approximately 1 700 RDs (3 to 4%) spend more than 2 years in detention. • A 2009 analysis of RDs who spent more than 2 yrs in detention revealed several factors that may play a role: • Multiple number of co-accused in one case or accused linked to other crimes that are under investigation as well as requests for separation of trials • Failure of witnesses to appear in court, leading to the case being remanded for several times • Requests for remand by defense lawyers and the state • Failure of accused to appear in court • Withdrawal or changing of legal representation • Delay in securing a date at the high court • Multiple witnesses in the case • Loss of court records 15

17. REMAND DETENTION FACTORS RD Population Drivers (cont) • Large number of RDs detained without an option of bail (approximately 78%). • Failure / inability to pay bail by the relatively low number of RDs with bail. • Disapproval of approx 30-35% of Sec 63 applications (bearing in mind that this is a responsibility of the independent judiciary) due to amongst others: • Nature of crimes committed (aggressive, sexual and multiple) • Previous criminal record ito nature & interval between previous and current crimes • Involvement in gang-related crimes or crime syndicates • Lack of monitorable addresses. 16

18. SENTENCED INMATES Sentenced Offenders • Mandatory minimum sentences since 1997, may result over time in an increase in the number of offenders sentenced to very long periods of imprisonment, implying a slower turn over rate. • The change in legislation resulting in that Regional Courts can now deal with minimum sentences without referring to the High Courts has had a positive impact in that persons could be sentenced directly without having to first wait for a hearing in the High Court. • Continuous incarceration of offenders serving very short sentences, e.g. less than 6 months imprisonment (±4% of the sentenced population), impacting negatively on time available to present rehabilitation programmes. 17

19. SENTENCED INMATES Sentenced Offenders (cont) • Limited diversion options such as correctional supervision as a sentence option. • Changing profile of sentenced offenders (more aggressive, multiple crimes and longer sentences). • Lack of support systems makes it difficult to place some offenders on parole (106 offenders exceeded their approved parole dates as on 30 June 2010). • Inability by offenders to pay fines (865 offenders with fines as alternative to imprisonment still in custody on 30 June 2010). • Case backlogs from CMC (more than 4000 offenders exceeded their consideration dates). 18

20. REMEDIAL ACTIONS

21. ACHIEVEMENTS AS A RESULT OF THE IMPLEMENTATION OF THE 7 POINT PLAN FOLLOWING THE CJS REVIEW There has been improved coordination of CJS activities as a result of the implementation by the JCSP Cluster of the 7 Point Plan following the CJS Review and the Delivery Agreement • SAPS committed to increase the number of detectives by 19.6 percent and grew by more than 22 percent. In addition, 2 153 new recruits that will bolster detective capacity are currently undergoing basic training. • The NPA increased the number of prosecutors by 83. • Legal Aid South Africa increased their posts by 93. • More Judges and Magistrates were appointed to bring relief to pressure points. • Forensic Services, where significant exposures were identified, received specific focus

22. The Forensic Science Laboratory (FSL) has decreased their backlog from 2008/09 to 2009/10 financial year by 14 percent and plans indicate further improvement. Crime scenes visited increased from 60% in 2008 to 71.48% in quarter four of 2009, leading to an increase of 50 000 additional crime scenes visited last year. Consequently we are focusing on improving the forensic capacities including supporting ICT systems, to ameliorate the impact. The Crime Scene Management Manual has been finalised and the Investigation Manual is in the process of being drafted in conjunction with the Detective Services of SAPS. The Case Backlog Reduction intervention is continuing with 55 additional Regional Backlog Courts and 13 District Backlog Courts country-wide. IMPLEMENTATION OF THE 7 POINT PLAN (cont)

23. IMPLEMENTATION OF THE 7 POINT PLAN (cont) There has been a steady improvement in the number of cases finalised. 434 000 Criminal cases were finalised in all courts in 2009, against the 391 000 in 2008. During the 1st Quarter of 2010/11 the courts finalised a total of 117 771 cases which constitutes 50% of the 236 310 new cases received. In addition better screening processes have been implemented leading to less cases been placed unnecessarily  (e.g. not enough evidence) on the court rolls and more cases finalised through diversion processes before enrolment. Legal Aid SA is continuing in ensuring the availability of adequate legal representation to deal with the case load.

24. A Court Screening Protocol that deals with trial readiness of cases is being tested in the Western Cape Regional Courts as a precursor to national implementation. A Court Protocol that specifically deals with efficiencies in the trial phase, such as limiting disputes and improved case scheduling has been finalised by the Regional Court Presidents Forum and has been submitted to the Minister of Justice. A Court Protocol for Legal Aid Cases to improve co-ordination between the NPA and Legal Aid South Africa (LASA) has been approved, signed and circulated for implementation. A Protocol dealing with forensic services between the SAPS, the Department of Health, the NPA and the courts to improve the quality of criminal investigations and trials is being finalised. IMPLEMENTATION OF THE 7 POINT PLAN (cont)

25. The Criminal Procedure Amendment Bill (Forensics) dealing with fingerprint aspects have been finalised by Parliament. The second part of the bill dealing with DNA aspects will shortly be receiving attention. Case Flow Management Guidelines have been put in place to improve co-ordination between JCPS role-players at courts. Technology and modernisation programmes are continuing within the Cluster, including a focus on the alignment and integration of SAPS, DOJ&CD, NPA, Legal Aid SA and DCS Systems where appropriate. An integrated business information system (CJS BIS) that will provide the JCPS cluster with current and accurate data at all levels is in development. The first deliverables are imminent. The Chief Justice has established a coordinating committee dealing with case flow management and in particular backlogs and delays of cases. This will in future assist in ensuring greater interaction between the CJS role players and the judiciary. IMPLEMENTATION OF THE 7 POINT PLAN (cont)

26. CASES FINALISED THROUGH ALTERNATIVE DISPUTE RESOLUTION METHODS (ADRM ) • During the current financial year, a total of 63 182 cases were finalised by means of alternative dispute resolution methods of which a total of 1 072 (1.7% of national total) were finalised by the Regional courts and 62 110 cases (98.3% of national total) in the District courts. During quarter 2 of 2010/11, a total of 30 941 cases were finalised by the Lower courts which is 4% less than the total of 32 241 finalised during quarter 1 of 2010/11. • Alternative dispute resolution encompasses • Diversion and informal mediation as methods of resolution of disputes between the parties. • During the current financial year, a total of 22 192 cases were diverted after enrolment • 40 990 cases were successfully mediated on an informal basis. 25

27. CASES FINALISED THROUGH ALTERNATIVE DISPUTE RESOLUTION METHODS (ADRM ) 26

28. MEDIATION Informal mediation is a confidential and informal process to resolve a dispute with the assistance of a neutral third person (mediator), which is mainly a prosecutor duly authorised in writing thereto by the relevant Director of Public Prosecutions. A significant increase of 42.5% is noted in the number of informal mediations compared to the total of 28 770 informal mediations recorded during the previous year. The majority of cases (97.8% of national total) were finalised by the District courts and the Regional courts have finalised 906 cases which is 2.2% of national total of 40 990 cases finalised during the current financial year. Informal mediation in the Lower courts 27

29. CHILDREN DIVERTED IN TERMS OF THE CHILD JUSTICE ACT • During the current financial year 7 736 children were dealt with of which 408 children (5.3%) were between the ages of 10 – 13 years and 7 328 children (94.7%) were between the ages 14 – 17 years old. Noteworthy is the increase of 70.2% of children diverted between the age group 10 – 13 years during Q2 compared to Q1 of 2010/11, and 31.2% increase of children diverted between the ages 14 – 17 years old. 28

30. DIVERSION Offences of matters diverted in terms of the Child Justice Act 29

31. DIVERSION Offences of matters diverted in terms of the Child Justice Act 30

32. DIVERSION Outcome of diversion programme - Child Justice Act 31

33. FORMAL PLEA AND SENTENCE AGREEMENTS • Formal plea and sentence agreements are being used for more serious offences and the percentage of direct imprisonment in these matters are very high – Murder (94%), Robbery with aggravating circumstances (96%). 32

34. When the sentences imposed during plea and sentence agreements are compared to the sentence imposed by the courts, it is clear that direct imprisonment and correctional supervision are more frequently imposed during section 105A applications than in normal court proceedings. A factor to keep in mind though is that most of the plea and sentence agreements are being dealt with by the Regional Courts whereas the data from the ICMS includes more District Court information than Regional Court information. FORMAL PLEA AND SENTENCE AGREEMENTS . This table illustrates the number of plea and sentence agreements finalised by the various Courts. 33

35. SENTENCING • The following Table illustrates the time frames involved with the cases referred in terms of the previous Minimum Sentence legislation to the High Court for passing of sentence. • The number of matters finalised by the High Courts has decreased since the increase in penal jurisdiction of the Regional Courts on 31 December 2007. • The impact would be that accused are no longer detained as waiting trial detainees but sentenced sooner than the time frames indicated in the Table above. • It has to be stressed that the passing of sentence is in the discretion of the independent judiciary based on the legislative framework and precedent. 34

36. ACTIONS IN RESPECT OF SENTENCED INMATES Sentenced Offenders (Parole) 35

37. ACTIONS IN RESPECT OF SENTENCED INMATES Parole of Sentenced Offenders Persons placed under Community Corrections in terms of Section 276 and 287of the CPA indicates stable situation in that 25 574 was dealt with in 2008/09 against 25 513 in 2009/10. Alternative sentencing (Sentenced Offenders) • The % of placements against the number of considerations has continued to increase since 2003 from approximately 30% to a current +50%. • 2007-08: Considered vs Approved conditional placements 45.45% • 2008-09: Considered vs Approved conditional placements 46.98% • 2009/10: Considered vs Approved conditional placements 43.57% • 2010/11 1st Quarter: Considered vs Approved conditional placements 51.56% • The number of placements is largely affected by the quality of submissions from Case Management Committees (CMCs) at correctional centre level, as parole cannot be approved if sufficient information is not provided – e.g. sentence plans, progress reports, evidence of rehabilitation (interventions and programmes, sentence remarks, crime description). • Budgetary constraints at this point limits the capacity of the current CMCs but this aspect is being addressed in the current structural review of DCS. 36

38. ACTIONS IN RESPECT OF REMAND DETAINEES Release on Bail • Section 63(1) of the CPA (Act 51 of 1977) (Application by the RD or Prosecutor for review of bail condition). • Section 63(A) of the CPA (Act 51 of 1977) (Application by Head of CC for review of bail condition when the offender population reaches critical proportions). Release through finalisation of cases as a result of plea bargaining • Promotion 105A of the CPA (Act 51 of 1977) (Plea bargain) • RDs willing to enter into plea bargain are referred to Legal AID South Africa or are advised to discuss the issue with their own legal representatives. (See the details below)

39. ACTIONS IN RESPECT OF REMAND DETAINEES RDs released on Bail As a result of increased coordination and integration of activities within the CJS through the implementation of measures such the “bail protocol” more cases are submitted to the court for consideration and more approvals are obtained leading to an improved situation within DCS facilities.

40. ACTIONS IN RESPECT OF REMAND DETAINEES “Bail Protocol” (in conjunction with the CJS Review) • The “Bail Protocol” was adopted by Cabinet and is one of the mitigation strategies implemented to reduce the number of Remand Detainees at Correctional Centre level. • The protocol unpacks the JCPS cluster processes for the implementation of section 63A of the Criminal Procedure Act (Act 51 of 1977) • Section 63A makes provision that the Head of a CC may approach the relevant court to release an accused on warning in lieu of bail or to amend the bail conditions imposed by that court when the offender population of a particular CC is reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical health or safety of an accused. • DCS monitors on a monthly basis the statistics pertaining to the applications and approvals in terms of the bail protocol processes. 39

41. ACTIONS IN RESPECT OF REMAND DETAINEES Reduction in RD Children • The number of children below 18 years in RD significantly decreased over the past 4 years. • This can be attributed to the concerted effort made by the Regions to remove children to secure care facilities or refer them to Legal Aid South Africa to ensure that they have legal representation and to courts every 14 days. The latter is in line with the provisions of the Child Justice Act of 2008) • A total of 43, 9% of children’s cases are handled within the first 30 days of incarceration in DCS.

42. ACTIONS IN RESPECT OF REMAND DETAINEES Children in RD • There is insufficient secure care facilities for placement of children especially in Eastern Cape. • The seriousness of the crimes committed by children (14 to 16 yrs) is of a concern. Violent crimes (14, 9 %) and 18, 4 % of the crimes were of a sexual nature. • As was pointed out, the coming into operation of the Child Justice Act and the diversion processes has assisted in limiting the numbers of children kept in detention.

43. CONCLUSION Overcrowding in DCS is a cluster problem as DCS is at the receiving end of the CJS value chain. It is clear that increased cooperation and interaction between the various JCPS role players is starting to pay dividends. An example is to be seen in the positive change in the situation at one of the previous worst overcrowded correctional facilities in South Africa, nicknamed the ‘prison of hell’, Mthatha. A year ago the prison was 252% overcrowded but through dedicated attention from the cluster departments including positive responses from the judiciary, the situation at September 2010 has dramatically changed to a 52% overcrowding in terms of the capacity at that correctional facility. The intention is to look at all the correctional centres with extra ordinary high populations and implement the best practices learned from the Mthatha experience. Legislative amendments to the DCS legislation regarding remand detainees and parole aspects will also lead to improvement in the situation for the future. DCS is gradually increasing its bed-space in order to cater for the growing population of inmates. In line with recommendation by the Inspecting Judge, planning should be based on actual capacity requirements that are informed by robust prediction models. 42

44. CONCLUSION (cont) • Interventions aimed at reducing the number of RDs and the length of RD detention will continue to be aggressively pursued, such as: • Release by SAPS in terms of relevant sections of the Criminal Procedure Act (Act 51 of 1977 - sections 56, 59, 59A, 71, 72, etc) before the first court appearance. • Expediting police investigations, improving CJS processes. • Measures such as warnings, diversion, restorative justice, alternative sentencing etc. • Fast tracking RD cases through the use of plea-bargaining and guilty pleas. • Securing criminal records within a more acceptable timeframe. • It is the considered view that a combination of CJS interventions as well as increased accommodation will assist with the reduction of the overcrowding of correctional facilities. 43