I. RECENT CHANGES IN PRISON LEGISLATION
Three of the most striking features of South African prisons were, until recently, the elaborate system of racial segregation, the strict secrecy surrounding prison matters, and the use of corporal punishment, sanctioned by law, as a disciplinary measure for infractions committed while in prison. With the political changes underway in South Africa in the last few years, some important legal changes affecting all three issues have taken place. In addition, South Africa has substantially revised the imposition of the death penalty and introduced a new non-custodial sentence of correctional supervision.
The first systematic efforts to segregate prisoners in South Africa along racial lines were made in the late nineteenth century. In 1911, after the creation of the Union of South Africa, the Prisons and Reformatories Act consolidated earlier colonial legislation, and strict segregation was enforced throughout the system. In 1959, major new legislation governing the prison service was passed by the National Party government. The Prisons Act reiterated the rules for segregation in prisons, in line with the policy of apartheid being enforced in all parts of South African life.6
The 1959 Prisons Act to some extent echoes the language of the Standard Minimum Rules for the Treatment of Prisoners, adopted by the U.N. in 1955. Rule 6(1) states that "The following rules shall be applied impartially. There shall be no discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." The South African government claimed that it was in conformity with this principle. Nevertheless, section 23(1) of the 1959 Prisons Act stipulated that, where whites and blacks were held in the same prison,
Prison regulations further mandated that white inmates be guarded solely by white prison personnel. Religious advisers catering to white inmates were also exclusively white. White prisoners were entitled to a different "diet scale" (the only black prisoners who received the same amount of food as white convicts were those on death row).
As part of the general retreat of South Africa from the laws implementing apartheid, prison regulations have undergone modifications since 1988, during which time all references to race have been removed.7 In particular, amendments to the Prisons Act made in 1990 eliminated the requirement that white and black prisoners be housed separately by removing the provisions of Section 23 (1) of the 1959 Prisons Act quoted above.8 The practical effect of the changes in the law and regulations are discussed in the chapter of this report on "Different Treatment Based on Race."
Information about prison conditions was for many years closely guarded by South African government. In an attitude not unlike that of various communist governments, all matters related to prisons were deemed extremely sensitive. Prison-related issues were considered a matter of national security.
As one writer pointed out, this law meant that "those who question these aspects of our [South African] legal system may be accused of the worst crime of all C providing ammunition for the enemies of South Africa."9 Despite these precautions, the international community continued to expose South African prisons for ill-treatment of prisoners and appalling working conditions. In the late 1950s and early 1960s, the international campaign for the boycott of South African goods, later expanded by the anti-apartheid movement, began as a response to its prison system. South African prisons were repeatedly criticized by a number of human rights and international organizations. The government, for its part, alleged a "total propaganda war" by Amnesty International and the United Nations.10
The 1959 Prisons Act made it an offense to publish any false information on prisons, or, without the written authority of the Commissioner of Prisons, to publish other prison-related materials, including photographs or sketches of prisons or prisoners.11 Even though Section 44(1)(f) of the Act proscribed only the publication of false information regarding prisons, it placed the burden of proof that the information was not false with the publisher. Because the courts tended to interpret this sub-section very strictly and lawsuits were costly and time-consuming, prison-related items virtually disappeared from the South African press for many years.12 Furthermore, passing on information about prison conditions to even one more person was deemed to be in violation of Section 44. Consequently, even private correspondence on the subject was illegal.
In 1984 the South African Minister of Justice agreed that the authorities would regard the requirements of the Prisons Act as having been met if the media submitted all reports to the prisons service before publication, and published, with equal prominence as the original report, any comments that the service might make.13 This step did allow the South African media to give increased coverage to prison issues, but it was not until July 1992 that Section 44(1)(f) was repealed. Sections 44(1)(e) and (g), restricting publication of photographs and pictures of prisons, are still in force. In October 1992 a photographer for the Johannesburg Weekly Mail, a British reporter and a prisoners' rights activist were convicted of offenses including photographing prison installations and prisoners without permission, in connection with a Weekly Mail report on the use of the workshop at Leeuwkop prison, near Johannesburg, to manufacture weapons. The two South Africans were each sentenced to pay a R.1,000 (approximately $300) fine (the Briton had left the country).14 Nevertheless, the Minister of Correctional Services recently insisted that the prohibition was not aimed at media reporting and was not "unqualifyingly prohibitive."15 Some photographs of scenes inside prisons have recently been published in South African newspapers.
Another important legislative change affecting prison conditions took place in mid-1993. Until that date, the list of sanctions for disciplinary infractions committed in prison included corporal punishment not exceeding six strokes, applicable for prisoners under forty years of age; and dietary punishment, consisting of reduced diet, usually in conjunction with solitary confinement.16 These measures were exceptionally severe by international standards, and contrary to the U.N. Standard Minimum Rules. On June 23, 1993, an amendment to the Correctional Services Act was passed by Parliament which, among other things, removed corporal and dietary punishment as disciplinary measures.17 Important new procedural protections regulating the implementation of the remaining disciplinary sanctions were also introduced. These reforms come into effect in March 1994. (See also the chapter on "Disciplinary Measures.")
Sentencing: The Death Penalty and Correctional Supervision
Until 1990, South Africa was among the world leaders in judicial executions. In 1987, 164 prisoners were hanged, the highest number ever.18 However, on February 2, 1990 a moratorium on executions was announced in President de Klerk's speech opening the possibility of a negotiated transition to democracy.19 New legislation reducing the number of capital crimes and providing increased protection for people accused of capital crimes was passed in July of the same year.20 A review panel reconsidered death sentences passed before the legislative amendments, and had the power to commute them to a period of imprisonment. However, in a less positive development, executive control over sentences to life imprisonment was increased at the same time, with the initiative for release given only to the Commissioner of Correctional Services. Although no executions have taken place since 1989, the death penalty is still imposed, and more than 300 people were still on death row at the end of 1993.21
In 1991, a new sentence of correctional supervision was introduced into the South African judicial system, under which convicted criminals may serve all or part of their sentences under supervision in the community rather than behind prison walls. Correctional supervision for a period of up to three years may be ordered by a court as an alternative to a custodial sentence or as a condition for the imposition of a suspended sentence. Alternatively, a prisoner may be released to serve out a sentence under correctional supervision after serving part of his or her or sentence in prison. By the end of August 1993, 6,433 prisoners had been sentenced directly to correctional supervision, and the sentences of 2,104 prisoners had been converted to correctional supervision. Although the new sentence is a positive development, several prisoners' rights activists expressed their concern to Human Rights Watch as to the manner in which the scheme was working in practice; in particular that the poor, especially those living in informal settlements, or squatter camps, did not benefit. Moreover, the numbers of convicted criminals sentenced to correctional supervision is not significant as a percentage of the total prison population. (See further, chapter on "Release.")
6 Van Zyl Smit, Prison Law and Practice, pp. 20-25.
7 Ibid, p. 39.
8 Prisons Amendment Act 1990, section 10.
9 S. Kentridge, "Telling the Truth about Law" (1982) South African Law Journal, 648, quoted in János Mihálik, "Restrictions on Prison Reporting: Protection of the Truth or Licence for Distortion?" South African Journal on Human Rights, (Capetown) Vol. 5, Part 3, 1989, p.410.
10 Ibid, p. 410.
11 Section 44(1)(f) of the 1959 Prisons Act read, before it was amended: "Any person who publishes or causes to be published in any manner whatsoever any false information concerning the behavior or experience in prison of any prisoner or ex-prisoner or concerning the administration of any prison, knowing the same to be false, or without reasonable steps to verify such information (the onus of proving that reasonable steps were taken to verify such information being upon the accused); shall be guilty of an offense and liable on conviction to a fine not exceeding R.8,000 or, in default of payment, to imprisonment for a period not exceeding two years or to such imprisonment without the option of a fine or to both such fine and such imprisonment." Sections 44(1)(e) and (g) banned the taking or publication of photographs or sketches, and the publication of prisoners' own writings, respectively, without the written permission of the Commissioner of Prisons.
12 Dirk Van Zyl Smit, "South Africa," in Dirk Van Zyl Smit and Frieder Dünkel (eds.), Imprisonment Today and Tomorrow: International Perspectives on Prisoners' Rights and Prison Conditions, (Boston: Kluwer, 1991), p. 546.
13 János Mihálik, "Restrictions on Prison Reporting," pp. 415-416; Dirk Van Zyl Smit "Helderstrom Prison, South Africa," in R. Whitfield (ed.), The State of the Prisons (London: RKP, 1989), p.70.
14 Eddie Koch and Graham Harvey, "AWB uses prison as arms factory, claim warders," and Bafana Khumalo, "When going to jail is illegal," Weekly Mail, July 24 to 30, 1992 and October 23 to 29, 1992.
15 Adriaan Vlok, quoted in "Media free to report on jail matters: Vlok," Citizen, May 6, 1993.
16 Sections 51 and 54 of the Correctional Services Act prior to the June 23, 1993 amendment.
17 Published in the Government Gazette, Vol. 336, No. 14889, Cape Town, June 25, 1993.
18 János Mihálik, "The Moratorium on Executions: its background and implications," South African Law Journal Vol.108, Pt.1 (1991) 118-142; p.126.
19 In fact, the last execution in South Africa was carried out on November 4, 1989; Ibid, p.118.
20 The Criminal Law Amendment Act, 1990.
21 In June 1993, South Africa's white parliament voted for an end to the moratorium; however, the government announced that no further executions would be carried out without consulting with other political parties, and in fact no moves to resume executions have been made. The ANC is opposed to the death penalty and has pledged to abolish it if, as is likely, it becomes the majority party in a new government.