At any given moment some 25 000 accused have been in prison in South Africa awaiting trial for over three months, and some have been there since 1996.
”Part of the Bill of Rights contained in the Constitution says that there should be no undue delay in concluding criminal trials. However, the reality is that these unsentenced prisoners often spend 23 hours of the day in a cell, with no rehabilitation, no work and no recreation,” said Gideon Morris, a director of the Judicial Inspectorate of Prisons.
Morris said about 16 500 prisoners were released monthly after charges were withdrawn because of ”unnecessary arrests” by the police.
”People lose their jobs, house, car and even their wives,” said Morris, adding that the Inspectorate’s experience showed that delays in the resolution of cases were often caused by delays in police investigation.
Morris opined that the police should change their approach to arrest, saying it should not be the norm.
”We are over-eager to arrest and need a change of mindset,” he said.
People should rather be charged and warned to appear in court, especially if they were not a ”flight risk”.
”South Africa has the highest incarceration rate in Africa. With a population of about 44-million it has 187 000 people incarcerated,” said Morris. By contrast Nigeria with a population of 115-million people had a prison population of just over 70 000.
The only countries with higher incarceration rates are the United States of America and Russia.
Morris said one of the biggest challenges was the public ”baying for blood,” and demanding a zero tolerance approach to crime.
He said to see all prisoners as a danger was an extreme sort of reasoning. Society should know the difference between jailing a rapist, which was necessary, and jailing a person caught shoplifting.
In this respect, the country’s courts had a huge role to play in helping determine the appropriate sentence. Morris gave an example a 17-year-old who was jailed 15 years for armed robbery.
His crime was to try and rip a gold chain from a woman’s neck.
However, Morris said South Africa was making strides in reducing the numbers of awaiting trial prisoners.
Fourteen thousand awaiting trial prisoners have been released since the year 2000, and the awaiting trial population has declined to 51 000 of the 187 000 incarcerated.
Morris said the decrease was attributed to increased awareness work among communities, and changes to the law to allow plea-bargaining and alternative sentencing, as well as better cooperation between government agencies.
Using the example of Julia Mashile, the Pretoria woman released after being jailed for more than five years on suspicion of being part of a car theft syndicate, Morris said there was little redress for those arrested unnecessarily.
People could complain to the Public Protector, or consider civil legal action, the success of which was ”few and far between”.
The Department of Correctional Services said several of the country’s longest-serving awaiting-trial prisoners were incarcerated at the notorious Pollsmoor prison in the Western Cape.
Among these prisoners are Colin Fortuin, now 28. He has been in jail for almost six years, since November 1998, one of three men charged in the Cape High Court with kidnapping, murder and rape.
Fortuin’s legal adviser said he was not happy with the way the Sstate and police handled the matter, which has been repeatedly postponed because prosecutors and/or witnesses were not available.
”It is in the interests of justice that a prisoner should be tried as soon as possible. Each accused has the right to a speedy trial,” he said.
Fortuin’s counsel expressed dismay at the fact that his judgement was handed down in his client’s case in 2001, but he has not yet been sentenced.
He said some contributors to unnecessary delays were overburdened prosecutors, a backlog of cases on the court roll and ”bureaucratic bungling” at, for example, the Legal Aid Board, who were responsible for briefing and timeously arranging defence counsel.
Arguably the country’s longest-serving awaiting trial prisoner is Shaheen ”Doc” Ismail, who has been in jail since 1996 according to his advocate.
Ismail was granted bail in a murder charge, but remained in custody because of additional theft and fraud charges in a separate matter, as well as being implicated later in an alleged Pagad conspiracy to kill Cape magistrate Wilma van der Merwe.
Ismail is currently waiting for the Cape High Court to decide on his bail application on the conspiracy charges. — Sapa