Constitutional Court SA
Constitutional Court of South Africa at Constitution Hill, Braamfontein, Johannesburg (Photo: Lich Stefan Schäfer)

Why our judges need to stop sending people to prison

  • Nabeelah Mia

Imagine being forced to live on the streets because your parents have died and your extended family cannot afford another mouth to feed.

Imagine having to beg for food or money to buy food. After a few days of going hungry, you are so desperate that you take something from the local supermarket without paying for it. You do this a few times when you are desperately hungry and the police are called each time, but they let you go.

Then, one day, they don’t let you go and you are taken to a holding cell and have to appear before a judge. Bail is refused because of your previous theft offences. You are taken to a prison where you are expected to stay until your trial. Imagine having to then share a prison cell meant for 16 people, with 40 others, with poor ventilation, too few mattresses, dirty blankets and only one working toilet and shower.

Imagine never being able to sleep properly because you are worried about being hurt or taken advantage of in the middle of the night, so you tell yourself that you have to be alert at all times. Just imagine.

Anyone who has not been inside a South African prison cannot imagine the reality of the conditions inside. South African prisons have garnered the reputation as being among the most dangerous in the world, with reports of sexual violence, high transmission rates of TB and HIV, lack of access to proper sanitary and healthcare increasingly being brought to the forefront. One of the biggest contributing factors to these issues is overcrowding. At the end of March 2017, approximately 41 427 prisoners were without beds because there just wasn’t enough.

Arguably, an easy solution to this is the use of alternatives to imprisonment, such as community service or the imposition of fines for minor offences. (No, I am by no means suggesting that all murderers and rapists be given a community service sentence.) These alternatives have been available for a number of years in the South African criminal justice system, but today still, are not given consideration as a tool to combating overcrowding.

So what are these alternatives to imprisonment?

Both the Criminal Procedure Act 51 of 1977 (CPA) and the Correctional Services Act 111 of 1998 (CSA) also allows for judges to impose alternatives to imprisonment such as fines and community service. In many courtrooms however, these alternatives are often given less than a cursory glance.

In 2008, a magistrate sentenced a man to nine months imprisonment for stealing seven chickens valued at approximately R200. This matter was appealed and the appellant court decided that the punishment did not match the crime committed and imposed a fine, stating that “unless presiding officers become innovative and proactive in opting for other alternative sentences to direct imprisonment, we will not be able to solve the problem of overcrowding in our prisons”.

Almost 10 years later, judicial officers have not answered this call and imprisonment still remains the sentence of choice.

Some may ask: when has the judicial system been given the chance to properly consider these alternatives?

Case in point is the situation in relation to Pollsmoor Remand Detention Facility (Pollsmoor RDF). Exactly a year ago in December 2016, after successful action was instituted by Sonke Gender Justice in the Western Cape High Court, the Government was ordered to reduce overcrowding levels at Pollsmoor RDF from being 252% overcrowded to 150% overcrowded by the end of June 2017. As of 30 June 2017, Pollsmoor RDF was operating at 147.62% overcrowding because of sustained efforts of the Department of Correctional Services (DCS) and the broader criminal justice sector.

These efforts included formulating an action plan to reduce the number of remand detainees. However, only a small portion of that plan was dedicated to reducing overcrowding by using the CPA and CSA. The plan does not emphasise the benefits of using non-custodial sentencing, such as the reduction in overcrowding, which in turn could lead to better conditions in prisons. Further, whether judicial officers were consulted in considering reduction in overcrowding through alternatives to imprisonment is unclear.

So what are the benefits that alternatives to imprisonment provide?

There has been a move amongst South African civil society organisations within the criminal justice sector to advocate for a more humane and restorative approach towards justice, including pushing for non-custodial sentencing. An example of this is the South African National Institute for Crime Prevention and the Reintegration of Offenders (NICRO). NICRO works with the state to provide these forms of non-custodial measures.

These interventions are founded on the idea that to ensure that people do not reoffend and return to the criminal justice system a change in behaviour must happen. Programmes are rehabilitative and include community service, life skills and counselling. Individuals are monitored and evaluated through a strict process and only once progress is shown, are they allowed to return to their communities.

As at 2013, NICRO had reported working on over 4700 cases of non-custodial sentencing. In a country with a prison population of over 157 000 people this may not seem like a large number. But given adequate resources and political will, this number may improve dramatically resulting in a sizeable portion of the population now being able to contribute towards society.

Apart from the obvious benefits of reducing overcrowding, these programmes benefit communities too. Programmes that emphasise community service focus on a form of justice that benefits the community, through the provision of services to not-for-profit organisations. They foster responsibility on the part of the offending party to their communities. Community members see offenders contributing to their communities, thereby shifting mindsets and allowing for smoother reintegration. Where programmes provide rehabilitation from drug and alcohol abuse, they go towards addressing larger structural problems that contribute to crime.

Howard Zinn, an American civil rights activist, said “I am convinced that imprisonment is a way of pretending to solve the problem of crime. It does nothing for the victims of crime, but perpetuates the idea of retribution, thus maintaining the endless cycle of violence in our culture. It is a cruel and useless substitute for the elimination of those conditions – poverty, unemployment, homelessness, desperation, racism, greed – which are at the root of most punished crime. The crimes of the rich and powerful go mostly unpunished.”

Despite this being in reference to American society, we know this to be true in South Africa as well. We know that the powerful and rich often act with impunity or are released on medical parole to escape imprisonment, while our average fellow South Africans are subject to imprisonment for years without being given any chance of rehabilitation.

Given the levels of violence and traumatic conditions in South African prisons, it is evident that rather than an emphasis on rehabilitation, imprisonment often results in prisoners becoming victims – why not pursue alternatives that do promote rehabilitation?