III. DIFFERENT TREATMENT BASED ON RACE
Black male prisoners constitute the overwhelming majority of the South African prison population. As of December 31, 1992, the system held 4,258 white prisoners, of whom 191 were women. The total "non-white" prison population stood at 104,440, of whom 3,178 were women. The official statistics break down the "non-white" population into three racial groups: "Asian" (of Indian subcontinental ancestry), "Coloured" (mixed-race); and "Black." At the same date, the totals for each of the three groups were as follows: "Asian": 586; "Coloured": 27,315; "Black": 76,448.30
Some of the most significant variations in physical conditions arise from the different treatment of white and "non-white" prisoners. Apartheid in the prison system formally ended with amendments made to the Correctional Services Act in 1990. Gradually, some black, "coloured" or "Asian" prisoners have been placed in formerly all-white prisons and vice versa. The process has been slow, and at the time of our visits most prisons still had their "traditional" racial profiles, with only a small proportion of inmates of the other races. In particular, the formerly all-white prisons still had overwhelmingly white populations.
For example, at the Durban Westville prison complex, the formerly all-white prison, holding 229 inmates on the day of our visit, held 167 whites; while the three formerly black prisons, holding 2,507, 2,617, and 694 prisoners on the day of our visit, housed sixty-one, seventeen and twenty-seven whites, respectively. In the formerly all-white Pretoria Central prison, out of the population of 865, there were 674 whites on the day we visited. In Kroonstad Medium B prison, formerly housing only white men, there were 228 whites, seventy-two "coloureds" and 149 blacks in the prison on the day of our visit. Kroonstad Medium C, formerly used for white women, had achieved more balance: out of 147 prisoners, thirty-two were white, ninety-nine were black, and sixteen were "coloured."
The prisons that formerly housed no white prisoners continue to house mostly black prisoners. In the three Brandvlei prisons, holding a total of 2,532 prisoners on the day of our visit there in February 1993,
there were thirty-one white inmates. In the Barberton prison complex, also visited in February, there were two whites among the 3,780 inmates. In Kroonstad Medium A prison, formerly housing no white prisoners, there were only sixteen whites (described as "skollies" or hooligans by the commanding officer of the prison) among 1,115 sentenced prisoners. On Robben Island, a formerly all-black prison largely used for security prisoners, there were twenty-two whites out of the 615 prisoners on the day of our visit in August 1992.
The formerly all-white prisons had dramatically better living conditions. Even following the formal integration of the prison system, whites are usually afforded better treatment. We noticed that whites were often housed in single cells as opposed to communal ones (for example, on Robben Island virtually all the whites slept in single cells). Prison authorities, and some of the prisoners, stated that this housing pattern was the choice of the prisoners themselves. In addition, the formerly all-white prisons, where whites still account for the majority of inmates, tend to have single cells rather than dormitories. Where there are dormitories, whites are sometimes grouped together and do not share cells with non-whites. We also received reports that in some prisons beds were being introduced only after whites had been transferred to these institutions.
During several interviews we heard of different treatment being received by white and black prisoners. One of the most frequent complaints heard during our visits and in interviews with ex-prisoners was that white guards routinely used racial insults, and that both white and black warders were more likely to assault black prisoners and treat them more severely in all aspects of prison life. This type of discrimination is not officially permitted, but in practice prison warders face little threat of sanction. Although the display of political insignia is prohibited under the rules of the Department of Correctional Services, some prisoners reported to us that posters supporting white nationalist parties had been displayed in staff areas at election times.31
Examples of official discrimination ranged from the relatively trivial C for example, at Brandvlei prison hospital, inmates reported that only whites got milk and that whites got different types of eating utensils C to the much more substantive. Several ex-prisoners complained to us that white prisoners would get additional time at visits, or would be allowed contact visits, when other prisoners in the same "privilege group" were not. They would also more quickly be promoted to the highest "privilege group", where they would avoid the worst hardships of prison. This differential treatment was also confirmed to us by some warders to whom we spoke outside prison walls, and by some white prisoners. In particular, whites have greater access to training facilities and are assigned to less onerous work. In prison after prison, we observed a high proportion of whites among prisoners employed in the kitchen (one of the most desirable work assignments in prisons worldwide); again, in workshops where inmates were receiving meaningful training, a disproportionate number of those benefiting were white. According to prison staff sources and prisoners themselves, white prisoners never work outside the prisons, in such facilities as police stations or courts or at other locations where they could be publicly seen. A white prisoner in Kroonstad complained that in fact this meant that blacks had more opportunities to see the outside world.
In some prisons, inmates were still segregated but appeared to be receiving similar treatment in other respects. In the women's prison at Kroonstad, a relatively pleasant environment for incarceration that had previously been used only for white women, black and white prisoners were housed in separate areas at night. However, all prisoners had single cells (which were not individually locked), and the conditions in the different areas appeared to be identical. The prison authorities justified the segregation on the grounds that, due to language problems, white and black prisoners wished to watch different television channels.
Some blacks held in formerly white prisons benefit from the historically better conditions afforded to whites; few whites are exposed to the worst prisons in the system. This observation appeared during our visits to apply particularly to juvenile prisoners: in no case did we see white juvenile prisoners being housed with black. On the other hand, although we did not visit any institutions designed for white children, we received reports that black children were being gradually introduced to these facilities.
Where whites have been introduced into historically black prisons, this has resulted in efforts to improve conditions; for example, by introducing beds. One case in which a white prisoner was placed in a formerly all-black prison among black prisoners led to an unsuccessful attempt to bring a court case challenging prison conditions. After Pollsmoor prison was integrated in December 1991, some white prisoners C until then used to what they had grown to consider the norm for prison conditions; that is, single beds with complete bedding, hot and cold water, adequate food, clean and vermin-free cells C suddenly, to their utmost shock, found themselves in what black prisoners had grown to consider normal. They were housed in cells that held twice the number of prisoners they were designed to house, and made to sleep on sleeping mats laid out on the floor, with two lice-infested blankets as bedding. Cells were dirty, damp, poorly lit, badly ventilated and with insufficient ablution facilities.
The newly transferred whites, along with their black fellow prisoners, who suddenly discovered that there could be better prison conditions within the same prison system, decided to challenge these conditions in court. (At the request of the attorneys for the plaintiffs, Human Rights Watch provided an affidavit describing the findings of our delegation's visit there in August 1992.) On the eve of the application, however, the prison authorities effectively put a stop to it by prohibiting legal consultations between the inmates and their attorneys and by transferring the would-be plaintiffs to different institutions.32
DISCRIMINATION AMONG PRISON STAFF
Until recent reforms, discrimination between black and white members of the prison staff was institutionalized in the same way as discrimination between black and white prisoners. For example, according to regulations replaced in 1990, all "white" members of the Department of Correctional Services automatically outranked all "non-whites."33 Officially, there is now no discrimination in promotion, housing, or otherwise on racial lines among prison staff. A few black members of prison staff have reached high levels within the department: at Barberton prison complex, the head of the maximum security prison at the time of our visit, Colonel Khoza, was black. Shortly after our visit he was promoted to brigadier and became Commanding Officer of the Barberton prisons.
Nonetheless, as is the case with discrimination between prisoners of different races, informal discrimination continues. Many black or "colored" prison guards, speaking to us outside the prisons where they worked, said that promotion was routinely given to white warders over their colleagues, purely on racial grounds. Black warders also suffered discrimination in the allocation of housing to prison staff. Many of these guards were members of the Police and Prisons Civil Rights Union (POPCRU), an organization founded in 1989 by a group of "colored" policeman and prison guards which is committed to the improvement of working conditions for black and "colored" prison staff and to the promotion of respect for the civil rights of all prisoners and detainees. Individual members of POPCRU, and the organization itself, have been subject to official harassment.
The 1990 amendments to the prisons legislation, while repealing racially discriminatory provisions in the law, also made it an offense for members of the prison service to join or form a trade union without the permission of the Commissioner of Prisons. Although this measure was clearly aimed at POPCRU, the union continued to grow in strength, especially among black police officers patrolling the townships.34 In September 1993, legislation was finally passed to legalize unions in the prison service. The Department of Correctional Services stated to us in December 1993 that it "fully subscribes to the principles of freedom of association, of collective bargaining, as well as the universally acknowledged dispute resolution mechanisms."35
Several prison officers who were members of POPCRU stated that they had been subject to harassment by the authorities for their membership. Some had been subject to official disciplinary inquiries where they had been guilty of no misconduct, or of the same conduct as others who were not being investigated; other POPCRU members had been demoted, or given more onerous tasks within the prison system. In Pollsmoor prison complex, five guards lost their jobs in September 1992 for participating in a strike organized by POPCRU in 1990, and for their "poor career profiles."36 One guard, also a founding member of POPCRU, was demoted and his pay reduced after it was discovered that he had been cooperating with our investigation of prison conditions.
In February 1993, over one hundred prison staff from Pietermaritzburg prison were dismissed, and approximately 200 others went on strike in sympathy. In March, seventeen POPCRU members from Pietermaritzburg, including the national Assistant General Secretary of the union, Zwi Mdletshe, were arrested for their activities in connection with the strike. Five were charged with the offense of "intimidation." They were denied bail, according to the terms of the 1992 Criminal Law Amendment Act, which limited procedural protections for those accused of "special offenses," including intimidation. In May, after an expedited trial, all five were acquitted. All the dismissed warders, except Mdletshe, were eventually reinstated, following court action by POPCRU; Mdletshe was still under suspension at this writing, pending a hearing before a board of inquiry.
30 Letter from the Department of Correctional Services to Human Rights Watch, April 2, 1993.
31 In one particularly notorious case, it was alleged by Lawyers for Human Rights and others, based on evidence from prisoners and warders, that warders at Leeuwkop prison, near Johannesburg, were openly members of the paramilitary Afrikaner Resistance Movement (Afrikaner Weerstandsbeweging, or AWB) and were using the prison workshops to manufacture weapons which were then being used in township violence. The Department of Correctional Services denied that there was any AWB activity at the prison. Eddie Koch and Graham Harvey, "AWB uses prison as arms factory, claim warders," Weekly Mail, July 24 to 30, 1992.
32 South African law does not allow for class actions in the manner of the American system; such a case would have been exemplary only and required specific plaintiffs complaining at the specific conditions of their detention. In June 1993, the Department of Correctional Services commented that "The prisoners who allegedly planned the action against prison conditions indicated in a written affidavit that they were no longer interested in such a case. The allegation that the action was thwarted at the last minute by officials is rejected." Shehnaz Meer, "Bars to Exposing Conditions in Prisons," Supplement to the Weekly Mail, June 18 to 24, 1993. In an interview with Human Rights Watch, Shehnaz Meer, the attorney with the Legal Resources Centre (Cape Town) who attempted to bring this case, stated that the prisoners concerned had later informed her that the affidavits indicating that they were not interested in pursuing the case had not been voluntarily given.
33 Regulation 3 (now amended); Van Zyl Smit, Prison Law and Practice, p.39.
34 In 1993, in response to widespread demonstrations by members of POPCRU, a new amendment to the Police Act empowered the Minister of Law and Order to promulgate regulations allowing union activity in the police force, although strikes would still be banned. A new union was formed at the same time, headed by conservative police officers. See, in particular, Paul Stober, "Conservative officers to form new police union," Weekly Mail September 17 to 23, 1993.
35 Comments dated December 20, 1993, on the draft report on prison conditions prepared by Human Rights Watch, referring to the Public Service Labour Relations Act 1993.
36 Terry Bell and Alex Dodd, "Popcru under pressure at Pollsmoor," Weekly Mail September 25 to October 1, 1992; comments of the Department to Human Rights Watch, December 20, 1993.