Program Director
Wits University Vice Chancellor, Prof. Loyiso Nongxa
Deputy Minister of Justice & Const. Development, Andries Nel
Chair of the Portfolio Committee on Correctional Services, Mr Vincent Smith
Friends and colleagues
I must at the outset express gratitude to the Wits Justice Project for the opportunity you have given me, and the Department of Correctional Services (DCS), to share with you what government is doing to address and manage the challenge of Remand Detainees, an aspect of our functions that is critical for the administration of justice in our country.
I particularly welcome the appreciation you have that, fundamentally, the management of remand detainees cuts across all the role players responsible for the administration of justice in our Criminal Justice System.
That is not to subtract in any way from the core responsibilities we have as the DCS.
Remand detention has for a long time been the step child of DCS.
There was no clear policy in government as to where matters of remand should be situated and this has resulted in a situation where the needs of remand detainees were not on the forefront of developments within DCS.
The White Paper on Corrections in South Africa of 2005 captures and reflects this policy uncertainty as follows: “The Department of Correctional Services has been saddled with the responsibility of keeping a range of detainees within its facilities, as a legacy from the time when the Department of Prisons was administered under the Ministry of Justice and was perceived to have a single “custodial mandate”. Following the legislative and policy developments over the last ten years it has since become apparent that this perception cannot be sustained”.
In order to address this shortcoming the Cabinet Lekgotla in January 2006 took a decision to establish the Management of Awaiting Trial Detainees Project (MATD project).
This project has as two of its deliverables a White Paper on Remand Detention and a legislative framework for remand detention. These imperatives have resulted in the drafting of a White Paper on Remand Detention and the drafting of a Chapter on Remand Detention for insertion into the Correctional Services Act, 1998.
The 2006 Cabinet Lekgotla’s decision to refine the remand detention system in South Africa was based on the understanding that remand detention is a distinct function from just corrections.
One of the tasks of the project was to review the existing policy and regulatory framework governing remand detention.
In line with this approach, Cabinet tasked DCS in 2009 with the establishment of a remand detention branch to cater to all the staffing and detention needs in relation to remand detainees.
In light of the above, it is therefore clear that DCS has taken full responsibility for remand detainees in recent years and have taken a number of steps to realise the establishment of a branch.
The development of a White Paper on Remand Detention and the inclusion of a detailed Chapter on remand detention into the Correctional Services Act allow for the first time for DCS to regulate the care and custody of remand detainees.
I would today like to elaborate briefly on each of these aspects.
Establishment of RD Branch and dedicated RD Facilities
The Organisational Structure for the Branch: Remand Detention has been approved and the creation of posts in government’s Persal System has been done.
The department is currently in the process of advertising and filling posts within this new Branch structure.
The department has also identified specific correctional centres that had been declared as dedicated RD Facilities.
These facilities are typically closer to the busier courts within the country.
By having dedicated facilities the distinct needs of RDs can be better catered for.
White Paper on Remand Detention and Correctional Matters Amendment Act of 2011
Whereas the existing policy framework remains valid, there are important gaps that required attention and necessitated the development of not only a White Paper but also subsequently a more detailed legislative framework on remand detention.
The White Paper, apart from proposing legislative instruments, also articulates the overlaps that exist between remand detention and certain aspects of national security. It further proposes mechanisms for managing information on remand detention, aspects of which include the classification of the information and regulating access thereto.
The White Paper also proposes the development of protocols between all stakeholders in respect to remand detainees and remand detention. In this regard, the White Paper proposes that measures for redress available to children in trouble with the law should be made uniform across all entities that detain children and not just applicable to children in detention in police cells.
With regard to officials working in RD facilities, the White Paper provides that training and development should be a constant feature of remand detention officials; that these officials should be subjected to periodic security screening; and that significant investments need to be made to enhance the capacity and infrastructure of the remand detention facilities. In this regard, the point is made again that an effective remand detention management system is largely contingent on an effective and integrated criminal justice system.
I would at this stage want to take a moment and focus on another initiative that we undertook last year.In February 2010, I appointed a Ministerial Task Team to visit all correctional centres in South Africa and identify causes of overcrowding, as well as trends and best practices.The Task Team was also specifically tasked to look at factors impacting on remand detainees, especially in relation to the underutilisation of existing legislative provisions such as section 63A of the Criminal Procedure Act and the accompanying Bail Protocol.
Amongst the most significant recommendations made by the Task Team are the following:
- A system of classification of RDs must be implemented.
- An integrated criminal justice system cluster to become a reality at all levels and to operate under a single cluster management structure.
- There must be harmonisation of objectives within the cluster to effect a common approach to management of RDs.
- A cluster structure to be responsible for reviewing cases of ATDs in detention for longer than a stipulated period.
- The cluster must find solutions to lengthy court delays by establishing a unit dedicated to that.
- The decision to move away from mixed facilities to RD Facilities to be implemented with greater urgency.Such facilities should be purpose built with offices for all components of the Justice, Crime Prevention and Security (JCPS) cluster to further enhance its integration, oneness of purpose and operational efficiency.
- All RD facilities to have dedicated court officials to deal with relevant legislative provisions for the release of RDs.
The department has established an Enterprise Project Management Office to implement the recommendations of the task team.
Allow me now to highlight a few elements of the Correctional Matters Amendment Act of 2011, in as far as it relates to RDs. At the outset I must indicate that the provisions of the Act have not been promulgated as yet and this process will be undertaken in relation to different time frames set for different sections.
As of this week I have tabled in Parliament, regulations drafted to give effect to the provisions of the Act. Once these regulations have been approved by Parliament the bulk of the sections of the Act will be promulgated. There are three sections requiring cluster coordination and protocols to be in place and these provisions will be promulgated at a later stage.
Another provision that will be promulgated next year only is the provision stipulating that all RDs must be provided with uniform. Due to budgetary and manufacturing requirements it is envisaged that all RDs will only be provided with uniforms as of the middle of next year. The uniforms to be provided to RDs will be distinct from that provided to sentenced offenders. The decision to provide uniforms to RDs was taken based on humanitarian and security considerations.
We are further establishing a management regime for vulnerable remand detainees in order to ensure that their special social needs, notably health care, are properly attended to. We are also intent on ensuring that the vulnerabilities attending aged persons, those with disabilities and women are not exposed to undue harm that other remand detainees may visit upon them.
Related to this is the imperative to improve the existing profiling of remand detainees in respect to various considerations such as susceptibility to abuse by other remand detainees; separating first time offenders from repeat offenders; and the risk to escape from lawful detention.
The Act further provides for a mechanism that would enable our courts to review the continued detention of remand detainees on the basis of medical evidence that such persons are terminally ill or severely incapacitated. Again, this is intended to restore dignity of the affected persons while also ensuring that appropriate measures are in place to prevent same persons from subverting the interests of the administration of justice.
Over a period of time, we have been acutely concerned with a detention framework that allowed persons presumed innocent to remain in our custody for inordinate periods of time. Section 49G of the Act now provides for a procedure that requires that the continued detention of each remand detainee be monitored with a view that every six months, the Head of a Remand Detention facility has an obligation to alert the prosecuting service, and through the former, the investigating officer, that a person relevant to a particular case remains in detention. This is intended to ensure that the relevant parties do whatever it is necessary to expedite the resumption of proceedings against the remand detainee.
It is further intended that no continued detention of a remand detainee may exceed two years unless a court of law duly authorises such, after considering all facts placed before it.
The measures outlined in the Correctional Matters Amendment Act, in our view, provide meaningful impetus to the provisions of section 342A of the Criminal Procedure Act, No 51 of 1977, as amended, which details procedures that should be implemented with a view to having the Minister of Justice and Constitutional Development ultimately reporting to Parliament all cases of remand detainees who would have been in detention for the relevant periods of time.
We are hard at work trying to expedite the resumption and conclusion of cases against remand detainees who have been in our custody for 18 months and above. To be sure, the Justice, Crime Prevention and Security (JCPS) cluster has been giving uneven attention to this category of remand detainees for a while now. However, the new legislative injunction has injected a new sense of urgency and determination which, as the new law demands, has to be sustained.
The administration of justice frequently and unavoidably requires that affected persons be remanded in the custody of the police and that remand detainees be surrendered to the custody of the police. The current position in law provided that the police could detain remand detainees for up to thirty days and such period could even be extended. The surrender of remand detainees to the police, mainly to enable them to further their investigations, was governed by operational guidelines or directives of the South African Police Service.
In order to eliminate a whole host of challenges attending these arrangements, foremost of which was the imperative to protect remand detainees from any abuse while not in the custody of correctional services, our current law stipulates that remand detainees may not spend more than seven days in police custody, whatever the reasons.
Too often, we face the challenge of remand detainees exchanging identities under various circumstances. Often this is done with a view to helping a person facing a charge for a serious offence being erroneously released under another name to face a charge for a minor offence. We have criminalised this tendency and anyone guilty of this crime is liable to a custodial penalty not exceeding ten years or to such incarceration without the option of a fine or to both a fine and such incarceration.
As you would know and expect, many provisions of the Correctional Matters Amendment Act require enabling regulations - within the DCS and between the DCS and other departments of the cluster - and other logistical interventions. Again in this regard, we have been hard at work so much that we are due to table the former for consideration and adoption by Parliament where this is required by law. We are also giving attention to ensuring that appropriate resources, capacity and systems are in place to ensure an effective implementation of our global policy framework governing remand detention.
We are confident that the existing framework, properly implemented, should improve the orderly and secure management of remand detention; that all parties to remand detention will be clearer about their mandates, rights and obligations. It is in this spirit that we wish to welcome the needed partnership between us in this conference. I trust that you are familiar with the proceedings and agreements that were reached between the DCS and external stakeholders in a conference we held a few months ago in Gallagher Estate.
I raise this point because it is important that all of us need to avoid undue duplications of effort while at the same time we need to refine the integrated outcomes we seek to achieve. And that will better define for us the important points of mutual value add among us as partners.
I thank you.
Source: Department of Correctional Services
