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IV. THE "PRIVILEGE" SYSTEM

Almost anything an inmate is allowed to do or have in his or her possession is called a "privilege" or an "indulgence" in the South African prison system. Prisoners have few rights, and are entitled only to have those "privileges" granted to them by the Commissioner of Correctional Services at his discretion.

This philosophy, developed according to penal theories popular in the nineteenth century, was supported by South Africa's courts. For example, in one of the leading cases, Goldberg v. Minister of Prisons, the Appellate Division of the Supreme Court, the highest appeal court in South Africa, held that the rights of sentenced prisoners were limited to only those fundamental rights relating to their physical survival.37 The attitude of the courts is likely to change dramatically once a justiciable bill of rights is introduced in South Africa, following the multiracial elections scheduled for April 1994. Support for prisoners' rights has already been significantly increased by the important case of Minister of Justice v. Hofmeyr. The Appellate Division affirmed the dissenting opinion of Mr. Justice (now Chief Justice) Michael Corbett in the Goldberg case, that "a convicted prisoner retains all the basic rights and liberties ... of an ordinary citizen except those taken away from him by law." 38 Despite this positive development in the law, the privilege system remains in place.

The detailed system by which privileges are allocated is set out not in the Correctional Services Act or in the regulations published with the legislation, but in Departmental Orders whose legal status is not clear.39 As such, the content of the privileges that a prisoner may be awarded is in the sole discretion of the Commissioner of Prisons, beyond

the reach of the courts.40 All sentenced prisoners are allocated to one of four "privilege" groups, A, B, C or D. The privilege group to which a prisoner is assigned is unrelated to the length of his or her sentence or to perceived dangerousness, which are taken into account only in determining the classification into maximum, medium or minimum security prisons. All sentenced prisoners start out serving their sentences as members of group C, and Group A inmates tend to constitute a minority within each prison population. As of the end of July 1992, out of 241 sentenced prisoners in the female prison at Pollsmoor, there were 27 group A inmates; 38 group B; 172 group C and four group D. More than half the inmates were serving sentences of under two years, and of these, an overwhelming majority had classification C. On Robben Island, where sentences of up to ten years are served, out of 611 prisoners, 128 were group A; 177 group B; 303 group C and three group D.

Among "privileges" allocated according to a classification group are, most notably, the conditions regulating visits and telephone calls. We discuss these in detail in the chapter "Contacts with the Outside." Other "privileges" include: the right to sharing a meal during relatives' visits (only group A, since this is the one category of prisoner allowed any physical contact with visitors); purchases (the amount a prisoner is allowed to spend and the type of goods he or she may purchase vary according to classification); possession of musical instruments (group A only); writing of poetry (only groups A and B); hobbies (only groups A and B); possession of pets (group A only); television sets and cassette players in the cell (group A only); reading matter (group D is not allowed to purchase any); library (group D one book a month, the other groups have unrestricted access and can borrow two books per occasion).

In addition to these different levels of "privilege" outlined by the regulations, different institutions have their own additional ways of rewarding those with the highest classification. For example, in the Pollsmoor female facility, group A prisoners had a separate dining room, nicer-looking than the one for the remaining prisoners. There is also a system of group privileges, by which, as a reward for good group behavior, all prisoners, irrespective of their individual privilege group, may be allowed to listen to music, enjoy extra recreational time and so forth.41 Contrary to the U.N. Standard Minimum Rules, these privileges may be also removed as a form of group punishment.

A prisoner's performance is reviewed after three months and every six months thereafter by an "Institutional Committee," at which time he or she can be advanced one notch in the classification.42 It thus takes a minimum of one year for a prisoner to reach the A group classification. But this can only happen if a prisoner has a spotless disciplinary record. Until the 1993 amendments to the prison legislation, demotions could happen at any time and were frequently used or threatened as a disciplinary measure; however, the new amendments provide that the reclassification of a prisoner's privilege group may not be used as a disciplinary measure (see further, chapter on "Disciplinary Measures").

The irony of the South African classification system is that it awards the best conditions to individuals who committed the most serious crimes, affording the harshest to those sentenced for the shortest terms. Only persons with relatively long sentences stand a chance of ever reaching the highest privilege group. Those with shorter terms will be out before they can get to the point in which they could have contact visits, for example.

In addition to the privilege system of groups A through D, some prisoners are designated as "monitors."43 Monitors occupy the top of the prisoner hierarchy and are given jobs requiring some level of trust by the warders. For example, they may clean the staff offices or be entrusted with small amounts of money. During our prison visits, we encountered several such monitors clearly enjoying much more freedom to come and go around the prison grounds than other prisoners.



37 1979(1)SA 14(A); see Van Zyl Smit and Dünkel (eds.), Imprisonment Today and Tomorrow, p. 542.

38 1993(3) SA 131 (A). The case dealt with the conditions of detention of a detainee under the emergency regulations, but the principles are equally applicable to those convicted of common crimes.

39 Departmental Orders, Series B, V(3)(f)(i) to (xv); a copy of the list of privileges was supplied to Human Rights Watch by the Department of Correctional Services. See also Van Zyl Smit, Prison Law and Practice, p.193.

40 According to section 22(1) of the Correctional Services Act (as amended), "The Commissioner of Prisons shall determine ... (b) the groups into which prisoners are to be classified." Section 22(2) states that "The Commissioner may (a) grant such privileges and indulgences as he may think fit to any prisoner; (b) withdraw or amend any privilege or indulgence granted in terms of paragraph (a) to any prisoner if it is in the interests of the administration of prisons." The 1993 amendments to the Correctional Services Act removed the absolute discretion of the Commissioner to take away privileges from prisoners "notwithstanding anything to the contrary contained in any law ... [and] without furnishing any reason and without hearing such prisoner or any other person." However, there is still no right to a hearing when a prisoner is classified, nor is there any appeal from the decision.

41 DOB V(3)(h)(i) to (vi).

42 Section 62 of the Correctional Services Act, as amended. Subsections (2) and (3), added in 1993, provide that if a prisoner is not satisfied with the decision of the committee, he may submit a complaint, on the basis of which the commissioner may overturn the committee's decision. However, there is still no right to a hearing of any sort to challenge a prisoner's classification.

43 DOB V(2)(d)(viii).


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February 1994