On 1 July 2013 a new section of the Correctional Services Act sets a maximum length of detention for courts to consider. Partner departments in the Justice, Crime Prevention and Security Cluster (JCPS) will implement this legislation that is certain to curb excessive periods of remand detention, which is a key contributor to the severe overcrowding in remand detention centres.
The management of remand detainees demands a JCPS cluster approach, and a protocol developed by the cluster outlines the roles and responsibilities of the specific departments that have roles to play. Department of Correctional Services (DCS) as the main the custodian is the major driver of the implementation but other departments have key responsibilities in this regard such as Justice and Constitutional Development, the National Prosecuting Authority and the South African Police Service. Ultimate decisions on custody of remand detainees however will always rest with the courts.
Decisions made at court lead to the numbers of remand detainees we see in remand detention facilities today, which consistently constitute one third of the total DCS inmate population. Against this background the DCS introduced legislation that for the first time allows for the referral of remand detainees to court for reconsideration of their detention orders, based on the period of time the person has already been detained.
This amended legislation is contained in Section 49 G of the Correctional Services Act, 111 of 1998, as amended.
Section 49G of the Act determines that a remand detainee may not be detained for a period exceeding two years without such matter having been brought to the attention of the court concerned. The referral of the remand detainee by the head of the remand detention centre must be done three months prior to the completion of two years in detention. This will provide sufficient time for the courts to apply their minds. If a remand detainee remains in detention after the first consideration, further submissions must be made annually.
A remand detainee whose detention has not been reconsidered by the court within the required time frame cannot lay claim to having been detained illegally but has the right to be referred to court for continued detention to be reconsidered.
On the date of implementation of Section 49G, there will be a number of remand detainees who would have been in detention for periods in excess of two years and their detention cases would be reconsidered by the respective courts in the normal course of events as dictated by court rolls.
It must be understood that a consideration in terms of section 49G is a judicial administrative review process that seeks to establish whether further remand detention is still appropriate in each individual case presented to the court for reconsideration. In deciding on this, the courts will take a variety of factors into consideration and this includes the administration of fair justice and the risk posed to the community, victims and witnesses should a person be released. In the main the introduction of Section 49G does not aim to effect large-scale releases from remand detention but rather to contribute towards speeding up the finalisation of cases by having the courts interrogate the lengthy detention.
Enquiries:
Britta Rotmann
Chief Deputy Commissioner Remand Detention
Cell: 082 9041923
