White paper promises changes for those awaiting trial

Legislation passed in July criminalises torture in South Africa. (Oupa Nkosi, M&G)

Legislation passed in July criminalises torture in South Africa. (Oupa Nkosi, M&G)

Michael* is a 37-year-old man who by 2012 had been awaiting trial in the Johannesburg Medium A prison for six years.

The prison is 202% overcrowded; Michael is one of 81 men sharing a space designed for 40.

He is alleged to have provided robbers with information that assisted them in robbing a casino in 2005.

During the first year of his detention, he slept on the floor of the cell, sharing a toilet with 65 other men.

A year later, he was given a bed. He shared it with two other men.

Under the Constitution, Michael is innocent until proven guilty.

In late 2012, the Wits Justice Project told a forum discussing a white paper on remand detainees about Michael.

Ineffective
The paper – approved by the Cabinet this week – is supposed to prevent cases such as his from contravening domestic and international laws and treaties that protect the rights of awaiting-trial prisoners.

Although the passing of this policy has been welcomed, civil rights groups have their reservations and say it will be ineffective unless it is aggressively implemented by the entire criminal justice system.

Even then, the policy makes no material changes to the awaiting-trial times of prisoners, although it may go some way towards making their time in prison slightly more comfortable.

This followed the passing of amendments to the Correctional Services Act, which attempted to reduce awaiting-trial periods, in July.

These are prisoners who have been arrested and charged but their trials are either yet to start or are still continuing. About 29% of all prisoners in South Africa are not convicted, according to the department of correctional services.

Research shows they are prone to higher rates of suicide and are exposed to high risks of contracting tuberculosis and other infections.

About half these prisoners are released after prolonged periods in custody because the charges against them are dropped.

The white paper clarifies that awaiting-trial detainees may not be held in the South African Police Service's cells after their first court appearance – correctional services is responsible for their housing while awaiting trial.

Constructively occupied
They are to be given uniforms like convicted prisoners and have to have access to programmes similar to those convicted criminals can partake in.
The white paper uses "life skills" as an example and notes that awaiting-trial detainees must be kept "constructively occupied".

Prison officials must be trained to ensure the physical security of these prisoners as well as the protection of their human rights, the paper states.

Legislation passed in July criminalises torture in South Africa.

Also in July, the amendment to the Correctional Services Act (section 49 G) was passed, dubbed the "custody time limit", which states that awaiting trial detainees may not be detained for more than two years without appearing in court.

Clare Ballard, a researcher for the Civil Society Prison Reform Initiative and an attorney at the community law centre at the University of the Western Cape, pointed out that the amendment's title was "misleading". The law actually means that awaiting-trial prisoners must be brought before a magistrate or judge after two years to have their detention time "renewed", she said.

The review mechanism is "a very positive thing", Ballard said. The magistrate would have to take into account bail condition requirements, as well as the amount of time the accused had been in jail awaiting trial, "but through an altered lens".

"The longer someone is detained, the greater the justification for their release should be. It's a continued violation of their liberty," she said.

Excellent
Ballard added that the white paper, though taking into account these principles, was not "excellent", and repeated existing law and policy.

"But the department of correctional services can only do so much. So much lies in the hands of the department of justice, the police and the National Prosecuting Authority," she said.

"The department does what it can but we need to acknowledge that it doesn't administer bail conditions."

Nooshin Erfani-Ghadimi, project co-ordinator at the Wits Justice Project, said that the relevant authorities needed to see that the paper was properly implemented.

"The approval of the white paper on remand ... is a very positive step forward for correctional services in the country," Erfani-Ghadimi said.

"It has been in the pipeline for many years and it is encouraging to see it finally going forward.

"However, the test is in the full implementation of the regulations. After all, our existing laws ... already protect the human rights and dignities of detained and arrested people, but the implementation of the law is sometimes poor and sometimes nonexistent.

"We hope the authorities will properly resource and support the training and the implementation of the regulations and rules contained in the white paper," she said.

*Michael is not his real name

A previous version of this story said the community law centre was at the University of Cape Town. It is, in fact, at the University of the Western Cape.

Sarah Evans

Sarah Evans

Sarah Evans interned at the Diamond Fields Advertiser in Kimberley for three years before completing an internship at the Mail & Guardian Centre for Investigative Journalism (amaBhungane). She went on to work as a Mail & Guardian news reporter with areas of interest including crime, law, governance and the nexus between business and politics.  Read more from Sarah Evans

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