It Could Be You

Background

47 414 people in South Africa are currently in jail awaiting trial. They are held in inhumane conditions, for years at a time – before even having been convicted. Two-thirds will eventually be found innocent of the crimes with which they are charged.

This means that each year, thousands of innocent people are detained in appalling conditions for lengthy periods. The South African public is largely unsympathetic, believing that all those in jail –convicted or not – are guilty.

What they fail to realize is that the next innocent person subjected to this treatment could just as easily be them, or someone close to them.

“It could be you” is a campaign launched by the Wits Justice Project, in order to raise awareness about the plight of South Africa’s remand detainees.

Our aim is to raise public interest in the rights of remand detainees - a group of vulnerable people who have, sadly, fallen off the public radar. We wish to ensure that

• People are detained awaiting trial only when absolutely necessary;
• Remand detainees are held for the shortest possible time before their cases are finalised; and
• The conditions in which remand detainees are held are consistent with human dignity.

We want the public to consider what they would want to happen to them if they were arrested for a crime they hadn’t committed. This happens to hundreds of people each year. It could be you.

Why are people detained before they are convicted?

The purpose of remand detention is to ensure that an accused person honours his/her court date. Detention is the easiest way for the state to ensure that a person does not disappear without standing trial. Detention is also sometimes necessary where it is likely that the accused person will intimidate witnesses, interfere with the investigation or otherwise pose a danger to society.

However, an arrested person has the right, in terms of s35(1)(f) of the Constitution, to be released if the interests of justice permit. This means that a person who is accused of having committed a crime may only be detained pending trial in certain circumstances. This is because detention is a dramatic limitation on a person’s right to free movement, and there must be strong reasons justifying such a limitation – especially considering that an accused person has not yet been found guilty.

If the accused person does not pose a threat to society or the investigation and is not a flight risk, he/she may be released on bail or on warning. However, because our laws on bail are so strict, this is not an option for many people. In addition, bail is sometimes set too high for the accused person to afford the amount. The accused is then effectively detained by poverty. According to the 2009/2010 report of the Inspecting Judge of Correctional Services, there is at present an over-reliance on remand detention. Not only does this impact on the individuals concerned, but it also results in massive prison overcrowding, as correctional centres are forced to accommodate more and more remand detainees.

We wish to ensure that accused persons are detained awaiting trial only when absolutely necessary.

Where are remand detainees imprisoned?

South Africa’s prisons are notorious for their horrifying conditions. According to the report of the Inspecting Judge of Prisons, the average level of occupation of South Africa’s prisons is 139%. 19 correctional centres are considered “critically” overcrowded, with occupation levels of 200% and over. Medium A (the RD prison) in Johannesburg, for example, is 246% overcrowded. This means that a structure designed to hold 2 630 men has in it 6 480 men. In a communal cell designed for 80 men, there are 200. This means about half of them have to sleep on the floor, and that 200 men have to use two shower heads and one toilet.

Overcrowding brings with it a host of other problems. For example, the strain on other prison infrastructure, such as kitchens, hospitals and water reticulation is increased. Overcrowding also contributes to the levels of violence in prisons, as warders are less able to monitor inmates, and the competition for scarce resources heightens tension among inmates.

At the 19 critically overcrowded centres, on average 33 749 people are detained, 17458 of whom are RDs. This means that 52% of the prisoners in the most overcrowded correctional centres are RDs. The conditions under which they are detained are clearly unacceptable. In fact, the Inspecting Judge starkly states that “the conditions ... are shockingly inhumane and do not remotely comply with the requirements set forth in s35(2)(e) of the Constitution.”

In some centres, the effects of overcrowding are mitigated by allowing inmates to spend large parts of the day outside their cells- working or engaging in recreational or rehabilitation programmes. However, RDs have no access to rehabilitation or work programmes, and are often incarcerated in overcrowded cells for up to 23 hours a day.[1] This exacerbates the effects of even slight levels of overcrowding. According to Van Zyl J, “The fact that awaiting-trial detainees, who have not yet been convicted by a court of law on the charges against them but are nevertheless detained under such inhumane conditions, creates a serious ethical dilemma which warrants urgent attention.”

Essentially, under the status quo, the people who are being incarcerated in the most inhumane conditions are those whose guilt has not yet been established.

We wish to ensure that remand detainees are detained in conditions consistent with human dignity.

MOST OVERCROWDED CORRECTIONAL CENTRES AS ON 31 MARCH 2010

How long are remand detainees imprisoned?

On 17 August 2010, 47 414 RDs had been awaiting trial for more than 24 months. This is clearly unreasonable, considering that, on average, most criminal cases take only 5 days’ actual court time to finalise. According to the Legal Aid Board, approximately 65% of the cases it defends are withdrawn after a few months. Add to this the fact that the majority of postponements are in order to allow for further investigations, and it becomes clear that the police make arrests based on insufficient investigations, and many RDs are detained on charges that are unlikely ever to be proved.

One of the primary reasons for the delays is that many people are arrested by the South African Police Service on insufficient grounds. They are then detained to await the outcome of their trials. The Judicial Inspectorate of Prisons found that charges are frequently withdrawn after the accused has been detained for, on average, 3 months; and in cases that do proceed to trial, many are held not guilty for lack of evidence. Other factors that contribute to the delays include poor representation, a lack of the proper documentation, lost documents, and long postponements caused by an overburdened police-force and court system. In addition, there is a shortage of detectives, interpreters, social workers, probation officials and forensic analysts.

The latest statistics on remand detainees according to the Justice, Crime Prevention and Security cluster departments show that over 2000 RDs have been in prison awaiting trial for more than 2 years. 1516 have been imprisoned for 2 to 3 years; 488 for 3 to 5 years; 73 for 5 to 7 years and 3 for more than 7 years. Even more worrying is that, since 2009, there has been an increase in the number of people awaiting trial for more than two years in South Africa’s prisons.

We wish to ensure that remand detainees are detained for the shortest possible time before their cases are finalized.

What you can do

The Wits Justice Project relies on the stories of remand detainees and their friends and families to raise awareness about these issues. If you have a story relating to remand detention that you think we should know about, please contact us on This email address is being protected from spambots. You need JavaScript enabled to view it. .

Watch this page for further information about our campaign, and how you can get involved.