XI. SPECIAL CATEGORIES OF PRISONERS
As in most countries, women form a small proportion of the prison population in South Africa. On December 31, 1992, there were 3,369 female prisoners (790 of them unsentenced), accounting for 3 percent of the general prison population.112 As a consequence, women are not subject to the same conditions of overcrowding as male prisoners.
In the Durban Westville and Pollsmoor prisons, which formerly held black prisoners, female inmates were housed in communal cells similar to those for men, though in substantially less crowded conditions. Some women were held in much smaller cells holding four or six inmates each, and some lived in single cells. In Kroonstad women's prison, which formerly held only white prisoners, almost all women C black and white C were kept in single cells, decorated by their occupants, whose individual doors were never locked. As is common in prisons worldwide, the atmosphere in women's prisons generally was much less harsh than in those housing men.
The flip side of this situation is that there are fewer institutions holding women (in recent years, the number of institutions or sections of prisons holding women has been reduced to accommodate the faster-growing male population) and consequently, women tend to be held in prisons further away from their homes than men. They have fewer visits as a result.
Another visits-related problem particularly serious for women with young children is the fact that only prisoners with group A classification are entitled to contact visits. As explained in the chapter on the "privilege" system, it takes approximately a year to reach group A from the moment of entering the prison, regardless of the crime committed, the sentence imposed and the security assessment. This means that thousands of children of female prisoners are denied the right to
have any physical contact with their mothers.113 In fact, relatively few women ever reach group A, because their sentences tend to be shorter and they simply do not stay in prison long enough to go from the entry C level all the way to A. For example, out of the 495 women in the Durban prison on the day of our visit, eighty-five were classified in group A. In Pretoria, of the eighty-seven female inmates, only two were group A prisoners. In Pollsmoor, of the 340 female inmates on the day of our visit, only twenty-six had group A classification. Only women who commit more serious crimes stand a chance of eventually being able to have contact visits of any sort. This practice, in addition to affecting the inmates, victimizes the children, who suffer from lack of physical contact with their mothers.
The South African prison system allows women with children of up to two years of age, and in some cases up to four years, to keep the children with them in prison. As of May 1993, there were 189 children under four years of age in the prisons.114 In prisons we visited, there were limited special arrangements for mothers and children. Cribs were located in regular cells, next to the mothers' beds, so that mother and child could be together at night. If the mothers were required to work, their babies were cared for during the mothers' work hours in moderately well-appointed nurseries by assigned prisoners. Babies born in prison do not have that fact noted on their birth registration document.
Women are at a disadvantage compared with their male counterparts in prisons in several other areas. Where there is work, they are usually required to perform what one prison official accompanying our representatives described as "typically women's work," such as laundry or sewing. There is hardly any vocational training for women. According to government statistics, as of June 30, 1991, out of 2,581 prisoners receiving vocational training nationwide, only nine were female. They were training as hairdressers. In one prison complex, in Durban, the female prison was the only institution without phones for inmates' use.
One of the striking features in South African prisons is the presence of very young prisoners. During our visit to the Pollsmoor Maximum Security prison, we saw inmates as young as ten years of age. At the time of our visit, Sections E1 and E2 of that prison held over 200 juvenile prisoners each: one section held those already sentenced; the other, children awaiting trial.
The chart above, based on official statistics, shows the numbers of juveniles of different age groups (sentenced and unsentenced) held in prisons as of December 31, 1992.115 South African prison law classifies as juveniles persons under twenty-one years of age. These figures do not include juveniles held in police lockups.
Of the total, 5,208 were awaiting trial, of whom 720 were under eighteen years of age. Of all the juveniles being held in prison, 1,446 were under eighteen; in November 1992, this figure had been 2,656.116
Under the Child Care Act of 1973, unconvicted children who are awaiting trial are supposed to be held in a designated "place of safety." They are not to be held in police cells unless their detention is "necessary" and "no suitable place of safety ... is available."117 However, there are insufficient "places of safety" available to hold all the children in custody awaiting trial. In addition, police make inadequate efforts to trace children's parents or guardians in order to release the children into their parents' care. Many hundreds of children are therefore held in police cells unnecessarily, often for periods of weeks at a time.118 In May 1992, the Minister of Law and Order stated to Parliament that 595 children under eighteen were being held awaiting trial in police cells on December 31, 1991. Statistics are not kept noting the numbers of children held in police cells who are not ultimately charged.
Since the recent reforms took place, juveniles kept in prison or in police cells are usually, though not always, housed separately from adults. In some prisons we visited, for example in Kroonstad, this segregation had taken place only very recently, at the end of 1992. Moreover, despite residential segregation, children often mix with adults in exercise yards, as we saw in Modderbee and Kroonstad prisons; in addition, they may be transported to court with adult prisoners, as, for example, to and from Pollsmoor prison. In Pretoria Central prison, in Transkei and in some police lockups, we witnessed juvenile prisoners being housed with adults. All this raises serious security concerns. In addition, because anybody under twenty-one years of age is classified as a juvenile, sometimes very young and vulnerable children may be housed with individuals ten years older and potentially dangerous. In some cases, but not all, there is an effort to group children by age while holding them in custody. As is the case for adults, children awaiting trial are not segregated according to the type of offense with which they are charged, so that alleged murderers may be held in the same cells as shoplifters.
The mixing of children with adults, or with children of different age groups, is particularly serious in light of the disturbingly routine allegations of sexual abuse of juvenile prisoners.
Juvenile prisoners, like adults, are no longer officially segregated by race and should receive the same treatment whether white or black. However, the criminal justice system in general treats white children much more favorably than black, and very few white juveniles are sentenced to prison terms. The only white children we saw during our visits to South African prisons were white infants held with their mothers at women's prisons. Even more than white adults, white juveniles continue to receive preferential treatment.
In many prisons, the facilities for children are extremely poor, especially where there are only a few juveniles present. In Kroonstad, for example, no formal provision was made for the handful of children being held there to have any schooling. Some prisons, in particular Leeuwkop and Rustenberg, which we did not visit, reportedly have much more elaborate programs for children, including schooling and sports facilities. In a parallel situation to the women prisoners separated from their children, juveniles in custody, especially when they are held in these centralized facilities, may be held many miles from their places of residence, and effectively cut off from their families.
Children are among the victims of violence in police cells or prisons. Children are subject to the same disciplinary measures as adults, both authorized and unauthorized. In Modderbee prison in particular, juvenile prisoners stated to us that they were frequently assaulted and that they feared to talk to our representatives, even out of earshot of the warders, in case of reprisals. In a particularly shocking example, in October 1992, thirteen-year-old Neville Snyman was raped and killed by other juvenile offenders while being held awaiting trial in Robertson prison near Cape Town. He had spent two weeks in detention before appearing in court, when he was not released because his parents had not been able to attend court on the day of the hearing.119
The Department of Correctional Services has indicated that it does not wish to see children in prison. Yet the lack of an integrated approach to the criminal justice system means that prisons themselves have no control over the number of children sent to them. Measures proposed by the prison service to address concerns about juvenile offenders therefore focus on improved facilities rather than keeping children out of the system from the beginning.
Detention for interrogation or for preventive purposes is authorized under the Internal Security Act of 1982 and under equivalent legislation in the nominally independent homelands.120 In addition, under the Public Safety Act of 1953, the state president may declare an emergency and promulgate emergency regulations allowing detention in other circumstances. During the emergency that was in force between 1985 and 1990, tens of thousands of South Africans were detained without trial.121 Mass long-term detention of this type has ceased, although emergency-type laws still apply in "unrest areas" declared by the government in many black townships.122
Extensive amendments to the Internal Security Act adopted in 1991 significantly improved the legal situation of security detainees, historically subject to extreme levels of abuse, and in most respects they became theoretically subject to the same treatment as unconvicted prisoners. In particular, the right of access to legal advice was restored. Detainees under the Internal Security Act or Unrest Regulations are generally held in police cells rather than prisons; they are therefore exposed to the same dangers of police brutality as others in police cells.
Until 1990, the Internal Security Act criminalized much extraparliamentary opposition activity, as well as membership of organizations such as the ANC or the South African Communist Party. Nelson Mandela was only the most famous of many black leaders held under this legislation. Security prisoners such as Mandela were generally segregated from other, purely criminal, offenders in high-security institutions such as Robben Island. Representatives of the International Committee of the Red Cross were permitted to visit security prisoners from 1964, but ceased doing so in 1989, when South Africa refused to give access to detainees held under emergency legislation.
After February 1990, when the ANC and other groups were unbanned and negotiations for a transition to majority rule began, it was agreed between the government and the ANC, in two "minutes" signed during 1990 at Groote Schuur and Pretoria, that prisoners held under this legislation should be released (see also the introduction to this report). By late 1993, approximately 1,600 prisoners had been released under these procedures. The Human Rights Commission stated at the end of October 1993 that it believed that forty-six prisoners were still in custody who conformed to the description of political prisoner under the minutes. These prisoners are not segregated from other prisoners in any way, and are subject to the same conditions as prisoners convicted of criminal offenses with no political content.
South Africa is unusual in providing for the incarceration of judgment debtors; that is, persons against whom there is an outstanding judgment in a civil proceeding.123 According to prison legislation, judgment debtors are supposed to be segregated from other prisoners; however, if this is not possible because of the small number of prisoners of the same category, judgment debtors may be housed with other unsentenced prisoners.124 This was the case in those prisons visited by Human Rights Watch. In other respects, the conditions of their detention are similar to those for awaiting trial prisoners.
112 Based on data provided in an April 2, 1993 letter to Human Rights Watch from the Department of Correctional Services.
113 According to the Department of Correctional Services, in cases where a mother does not qualify for a contact visit under her privilege classification, "consultation visits" at which contact is allowed may be granted by the head of the prison. However, such a visit is at the discretion of the officer, if he regards it to be in the interest of the mother or the child, and is not a matter of right.
114 Moses Mamaila and Justice Mohale, "The Cell Block Kids," City Press, (Johannesburg) May 23, 1993.
115 April 2, 1993 letter from Correctional Services to Human Rights Watch.
116 Scott Kraft, "Jail Torment for Children in S.Africa," Los Angeles Times, December 18, 1992; see also, Ferial Hafferjee, "Children for whom a prison cell is home," Weekly Mail and Guardian, (Johannesburg) October 15 to 21, 1993. The number of juveniles held in detention fell towards the end of 1992, as a result of major campaign coordinated by several groups, including the Community Law Centre of the University of the Western Cape, Lawyers for Human Rights and NICRO-Cape Town, advocating children's and prisoners' rights. Lawyers for Human Rights ran a campaign to "Free a Child for Christmas" at the end of the year. However, LHR and NICRO reported that the number of children in prison increased again during 1993. A study of children in the criminal justice system, Justice for the Children: No Child Should Be Caged, was published by the Children's Rights Research and Advocacy Project of the Community Law Centre at the University of the Western Cape, on October 22, 1992.
117 Child Care Act 1983, Section 28; Correctional Services Act 1959, Section 29.
118 Since July 1992, Lawyers for Human Rights in Pietermaritzburg has run a Juvenile Justice Project, with one lawyer and one paralegal. Every child appearing in the Pietermaritzburg magistrate's court is contacted, and efforts are made to contact his or her parents. As a result children arrested in Pietermaritzburg rarely spend more than two or three nights in custody. There is no reason why a similar system could not be implemented by police at other police stations: interview with Ann Skelton, Regional Director of Lawyers for Human Rights, January 29, 1993.
119 Community Law Centre, Justice for the Children, p.3.
120 Section 29 of the Internal Security Act, the most notorious provision of the law, allowing detention for interrogation, was abolished in November 1993, by the Multiparty Negotiating Forum, and this change was ratified by the white parliament. However, other forms of detention under the ISA remain in effect.
121 An estimated 41,700 were detained under the emergency legislation between July 1985 and June 1990, with an additional 12,700 detained under the Internal Security Act over the same period: Human Rights Commission, Human Rights Update, June 1990.
122 According to the Human Rights Commission, 1,093 people were detained under the unrest regulations or the Internal Security Act in 1991; 451 in 1992; and 609 in the first ten months of 1993 (284 in unrest areas, and the remainder under the ISA or equivalent legislation in the homelands); HRC, Human Rights Review 1992 and Monthly Repression Report, August 1993.
123 For example, the leading international human rights treaty, the International Covenant on Civil and Political Rights, ratified by 124 countries (but not South Africa), provides in its Article 11 that "No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation."
124 Correctional Services Regulations, Regulation 135.