Issued by Ezra Mendel on behalf of the FW de Klerk Foundation on 02/10/2024

Introduction

The recent concerns raised by the Democratic Alliance (“DA”) surrounding the smuggling of contraband into correctional facilities have elevated long-time calls for the reform of correctional services in South Africa. With the promising change associated with the Government of National Unity (“GNU”) and with the Department of Correctional Services becoming its own ministry, separate from the Department of Justice, newly appointed Minister of Correctional Services Pieter Groenewald has expressed much optimism in reforming the prison system. Since Minister Groenewald assumed office, some positive steps have been taken, including targeted interventions to reduce contraband. However, prisons continue to suffer from budget cuts, overcrowding, violence and poor living conditions, fostering environments that promote crime rather than rehabilitation.

This article aims to explore how South Africa’s constitutional framework for prisoners’ rights can be advanced, while addressing the ongoing challenges faced in correctional facilities, such as overcrowding, violence and ineffective rehabilitation programmes. It will outline necessary reforms to bring correctional services in line with the country’s constitutional commitments to dignity, security and restorative justice.

Constitutional Framework for Prisoners’ Rights

It is vital to understand the constitutional framework for prisoners’ rights. South Africa’s Constitution provides a progressive legal foundation that ensures the protection of human dignity, even for those in detention. Section 35(2) of the Constitution guarantees every detained person, including sentenced prisoners, the right to conditions of detention that are consistent with human dignity. This includes the right to adequate accommodation, nutrition, exercise, medical treatment and access to reading material — all at the state’s expense. Furthermore, prisoners retain the right to communicate with their family, chosen religious counsellors and medical practitioners.

These provisions emphasise that imprisonment does not strip individuals of their right to be treated with humanity and dignity (also enshrined in section 10 of the Constitution). Despite this constitutional commitment, the lived reality within South Africa’s prisons often tells a different story. Overcrowding, violence and poor living conditions remain in stark violation of these constitutional rights and international human rights standards.

Deterioration of South African Prisons

Two critical issues in South African prisons are overcrowding and violence. South Africa houses around 160 000 prisoners in 237 correctional facilities, with prison density at 135% — meaning the population exceeds facility capacity by 35%. This severe overcrowding leads to inadequate access to essential services such as healthcare, sanitation and privacy. Such conditions also violate section 12 of the Constitution, which guarantees freedom from inhumane or degrading treatment. These shortcomings contribute to health risks and foster violence among inmates, undermining the goal of rehabilitation and pushing individuals deeper into cycles of crime.

South African prisons are also infamous for their entrenched gang networks, with groups like the Numbers Gang maintaining significant control. These gangs create a system of lawlessness and dominance within prisons, complicating efforts by the Department of Correctional Services to restore order. As a result, the prison environment becomes one of survival rather than reform. This state of underdevelopment and unchecked power dynamics highlights a critical gap in the government’s responsibility to uphold constitutional standards within correctional facilities.

Constitutional Solutions to Crime in Prisons

Minister Pieter Groenewald’s tenure in charge of South Africa’s correctional services has begun with a flurry of highly publicised prison raids, such as the recent operation at Johannesburg’s “Sun City” prison. These actions, which uncovered contraband ranging from cell phones to luxury items, have sparked praise from the public, but they also expose the systemic failures deeply ingrained within the prison system. The raids are important, however they simply seem to highlight the Department of Correctional Services’  reactive approach, which at best addresses symptoms of the underdeveloped and dysfunctional system, rather than its root issues. To truly reform South African prisons and bring them in line with constitutional standards, a more comprehensive and sustainable strategy is required.

The issue of overcrowding remains a critical obstacle. With correctional facilities operating at 135% capacity, overcrowding exacerbates nearly every challenge within the prison system. Minister Groenewald has recognised this and presented an overcrowding reduction strategy, but its success hinges on coordinated action from all entities in the criminal justice system. Without meaningful cooperation between courts, parole boards and law enforcement, overcrowding will persist, undermining any progress toward rehabilitative goals. The sheer volume of unsentenced detainees — over 43 646 — illustrates the inefficiency and backlog that contributes to this problem.

Furthermore, Groenewald’s raids may have addressed contraband issues temporarily, but they barely scratch the surface of the deeper issue: Gang dominance. Gangs like the Numbers Gang have long held sway over prison life, exploiting overcrowded conditions and the lack of adequate security. These gangs create a power dynamic within prisons that not only perpetuates violence, but also makes it impossible to foster rehabilitation. Minister Groenewald’s focus on eradicating contraband is a start, but without dismantling gang networks and implementing stronger security reforms, prisons will remain places of survival rather than spaces for reform.

One angle that cannot be overlooked is the role of oversight bodies like the Judicial Inspectorate for Correctional Services (“JICS”). The JICS plays a crucial role in monitoring prison conditions and ensuring that facilities meet constitutional standards. However, the Inspectorate has long struggled with inadequate resources, which severely limits its ability to effect meaningful change. Strengthening the JICS would not only ensure greater accountability within the prison system, but also provide an independent check on the Department of Correctional Services’ efforts. It is essential that JICS be empowered to enforce its findings and recommendations, ensuring that prisons align with constitutional principles of dignity, humane treatment and rehabilitation.

From another perspective, the lack of mental health support in prisons remains a significant barrier to effective rehabilitation. The traumatic and violent environment in South African prisons exacerbates existing mental health issues, often driving inmates deeper into criminal behaviour. A comprehensive reform strategy must include expanded access to mental health services, which are currently insufficient to meet the needs of the prison population. Addressing mental health is not just a moral imperative, but it is a practical necessity for reducing recidivism and ensuring that released inmates are able to reintegrate into society successfully.

Minister Groenewald’s vision of expanding educational and vocational programmes to make prisons more self-sustaining has potential. These programmes are crucial to providing inmates with the skills and opportunities they need to break the cycle of crime. However, for these programmes to succeed, they need substantial investment and broader implementation. The mere existence of such programmes is not enough — they must be accessible to all inmates, adequately resourced and tailored to address the specific needs of different segments of the prison population.

Conclusion

The focus on reforms, such as parole reform, community service and rehabilitation-focused sentencing, provides a vital approach to addressing the systemic challenges within South Africa’s correctional services. However, meaningful progress requires enhanced oversight from the JICS and a commitment to mental health care and vocational training.

Genuine advancement in prisons necessitates a strategic, rights-based approach that prioritises dignity, humane treatment and restorative justice. As Minister Groenewald states, “We will and have to do more with less. This will require innovation, discipline and commitment.” While optimism is essential, it must be paired with actionable strategies and adequate resources to transform prisons into spaces of rehabilitation. Upholding constitutional principles in correctional facilities is not just a legislative obligation, but a critical measure of South Africa’s dedication to justice and equality for all its citizens.