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History of Transformation of the Corrcetional System in South Africa

2.1 Introduction

This chapter aims to provide a brief overview of the history of the Department and the change in the direction of the correctional system during the past century.

2.2 The early 1900's

2.2.1 The early part of the last century saw the prison system regulated mainly by various Provincial Ordinances. The British occupation of the Transvaal and Orange Free State Republics in 1900 led to a major reorganisation of the penal systems in these provinces. This early period will probably be remembered most for an already inflated inmate population, mainly due to transgressions of the pass laws, and the fact that mining companies used prison labour at very low rates.

2.2.2 The Prisons and Reformatories Act, Act 13 of 1911, introduced shortly after Unionisation in 1910, saw the prison system also becoming responsible for the management of reformatories. Courts started playing an increasing role in the development of prison law, inter alia, with findings that it was unlawful to detain awaiting-trial offenders in solitary confinement and the ruling that offenders who felt they had been unfairly treated in prison had the legal right to approach courts of law for recourse. 

2.2.3 This period also saw the introduction of a system that allowed for the remission of part of a prison sentence subject to good behaviour on the part of the inmates and the system of probation that allowed for the early release of inmates, either directly into the community or through an interim period in a work colony or similar institution. There was much talk of rehabilitation but very little actually materialised. Punishment for transgressions within correctional centres was harsh and it included whippings, solitary confinement, dietary punishment and additional labour. Racial segregation within correctional centres was prescribed by legislation and it was vigorously enforced throughout the country.

2.3 The 1945 Landsdowne Commission on Penal and Prison Reform

2.3.1 Developments during 1945 held much promise. The Landsdowne Commission on Penal and Prison Reform found that the Prisons and Reformatories Act of 1911 had not introduced a new era in South African prisons but that it had in fact been a vehicle for maintaining the previous harsh and inequitable prison system that preceded it. This Commission:

  • held the view that offenders should not be hired out to outsiders;
  • asked for an increase in the emphasis on rehabilitation and the need to extend literacy amongst offenders, in particular black offenders; and
  • was critical of the Government's decision to reorganize the prison service on full military lines, which was seen to be an attempt to increase the control it had over prison officials. It warned that such a militarised system would not be conducive to "the various rehabilitative influences which modern views deem essential".

 

2.3.2 Sadly nothing much came of the Landsdowne Commission Report presented in 1947, as illustrated by subsequent permission for "bona fide farmers associations" to build prison farm outstations to facilitate the extended use of prison labour by farmers.

2.4 Prisons in the 1960's and 1970's

2.4.1 Brand new prison legislation in the form of the Prison's Act (Act 8 of 1959) was introduced. This new Act:

  • reflected little transformation of the prison system;
  • continued and even extended racial segregation within prisons in line with the national policy of "differential development" signalled in by Apartheid;
  • abandoned the "nine pennies a day" prison labour scheme and replaced it with a system of parole;
  • entrenched the military character of the prisons management, and made provision for commissioned  and non-commissioned officers;
  • closed the prison system off from inspection by outsiders by prohibiting reporting and publishing of photographs. This served to entrench a relatively closed institutional culture within the prison service, which resulted in a tendency for the norms of prison law to be relatively remote from daily practice; and
  • did not give essence to the internationally accepted meaning of the word parole since it still required of paroled prisoners to enter into employment agreements with employers (mainly farmers) at ridiculously low remuneration or else to remain in prison.

 

Although the new legislation took cognisance of the United Nations Standard Minimum Rules for the Treatment of Prisoners as far as the emphasis on rehabilitation was concerned, it ignored other crucial aspects, such as the prohibition of corporal punishment for prison offences.

 

2.4.2 Prior to 1960, prisons were not used to detain prisoners on a large scale as a means of controlling political unrest. This subsequently changed and the incarceration of political detainees and sentenced political prisoners became a significant feature of prison reality. This led to an increasing attack on the legitimacy of the prison system. Direct legal and court challenges by prisoners, and in particular political prisoners and detainees, to decisions by prison authorities and increasing international condemnation and pressure became the order of the day. The response by the government at the time was to grant even wider powers to prison authorities. Pass laws and the infamous system of prison labour remained targets for the critics of the government.

2.5 The Prisons Department in the 1980's

2.5.1 In 1984 the Judicial Inquiry into the Structure and Functioning of the Courts reported that the incarceration of prisoners as a result of influx control measures was a major cause of the overcrowding in prisons and it condemned these measures. Progressive changes started taking place with the closing down of prison outstations and a general decline in the use of prison labour for agricultural purposes. The system of paroling prisoners under paid contracts was also phased out.

 

2.5.2 Prisons, however, mainly remained overcrowded places of security and not much more. Although some rehabilitative processes were taking place, they were insignificant. These marginal improvements in the prison system were, however, soon overshadowed by the declaration of the State of Emergency on 21 July 1985, which lasted until 1990. The mass detention of political prisoners in prisons during this period further inflated the already problematic prison population.

 

2.5.3 During 1988 important amendments were made to prison legislation. By excluding all references to race, a reversal of the almost total racial segregation of the prison population was brought about, although it took some years before this was implemented. The infamous prison regulation that ruled that "white" staff members automatically outranked all "non-white" staff members was also repealed. 

2.6 Prison reforms in the early 1990's

2.6.1 Late in 1990 the government announced that it planned to introduce extensive reforms in the prison system. The Prison Service was separated from the Department of Justice and renamed the Department of Correctional Services. This triggered important changes to prison legislation. An important milestone in this period was the introduction of the concept of dealing with certain categories of offenders within the community rather than inside prison – a system known as non-custodial "correctional supervision". This was introduced as a more cost-effective way of dealing with offenders and a response to overcrowding. 

2.6.2 Despite this policy shift, the Department of Correctional Services continued to be saddled with the responsibility of keeping awaiting-trial detainees within its facilities, as a legacy from the time when the Department of Prisons was administered under the Ministry of Justice and was perceived to have a single "custodial mandate". There is a policy gap in relation to the responsibility for awaiting-trial detainees.

2.6.3 The release policy and the automatic system of remission were revisited and a system of credits, which prisoners could earn for appropriate behaviour, was introduced. At the same time, in the face of rising challenges to the racial barriers on promotion of black members into the officer ranks in the Department, the Prisons Act was amended to make it illegal for warders to become union members without the permission of the Commissioner, and made it an offence to strike.

2.6.4 The introduction by the government in 1993 of the Public Service Labour Relations Act brought another transformation in this regard. This Act was introduced as a result of continuous pressure on the Government to grant public service employees protection from unfair labour practices. The scope of this Act was made applicable to the Department of Correctional Services just prior to the first democratic elections in 1994. This was an important development as it allowed employees of the Department to belong to trade unions, to engage in collective bargaining with the Department as employer and to declare and refer disputes to Conciliation Boards and to the Industrial Court for adjudication and settlement.

2.7 Transformation of Correctional Services in democratic South Africa

2.7.1 The Interim Constitution of the country, introduced in 1993, embodied the fundamental rights of the country's citizens, including that of offenders. This resulted in the introduction of a human rights culture into the correctional system in South Africa , and the strategic direction of the Department was to ensure that incarceration entailed safe and secure custody under humane conditions. On 21 October 1994, a White Paper on the Policy of the Department of Correctional Services recognised the fact that the legislative framework of the Department should provide the foundation for a correctional system appropriate to a constitutional state, based on the principles of freedom and equality.

2.7.2 The transformation of the Department in the first five years of the new democracy entailed:

  • significant changes in the representativity of the DCS personnel and management;
  • the demilitarisation of the correctional system in order to enhance the Department's rehabilitation responsibilities on 1 April 1996;
  • progressive efforts to align itself with correctional practices and processes that had proved to be effective in the international correctional arena; and
  • the introduction of independent mechanisms to scrutinize and investigate DCS activities, such as the appointment of an Inspecting Judge.

2.7.3 Despite the human rights culture brought about by the new democratic dispensation and enshrined in the Constitution, the immediate post-1994 transformation of the Department focused its attention mainly on safe custody. However, the National Crime Prevention Strategy (NCPS) approved by Cabinet in 1996, adopted an Integrated Justice System (IJS) approach that aimed through Pillar 1 of the NCPS at making "the criminal justice system more efficient and effective. It must provide a sure and clear deterrent for criminals and reduce the risks of re-offending." The key aims of programmes in this pillar were to:

  • increase the efficiency and effectiveness of the criminal justice system as a deterrent to crime and as a source of relief and support to victims;
  • improve the access of vulnerable groups to the criminal justice process, including women, children and victims in general;
  • focus the resources of the criminal justice system on priority crimes;
  • forge inter-departmental integration of policy and management, in the interests of co-ordinated planning, coherent action and the effective use of resources; and
  • improve the service delivered by the criminal justice process to victims, through increasing accessibility to victims and sensitivity to their needs. 

2.7.4 The national programmes of the Pillar 1 of the NCPS were:

  • Re-engineering of the Criminal Justice Process
  • Criminal Justice Information Management
  • Crime Information and Intelligence
  • Prosecutorial Policy
  • Appropriate Community Sentencing
  • A Diversion Programme for Minor Offenders
  • Secure Care for Juveniles
  • Rationalisation of Legislation
  • A Victim Empowerment Programme.

2.7.5 The National Programme on Appropriate Community Sentencing indicated that available correctional resources must be used in a targeted way to deal more effectively with serious offenders. The imposition of custodial sentences on minor offenders reduces the likelihood of their reintegration into society and further burdens the criminal justice system. Increasing the availability of community sentencing options on conviction increases the humane treatment of minor offenders and will improve the effectiveness of corrections by reducing the burden on the correctional services department. This will also reduce repeat offending within this sector. The Lead Agency was defined as Correctional Services, assisted by Welfare, the Department of Safety and Security, Justice, the Law Commission and NGOs involved with offender rehabilitation. The key actions were the development of criteria in line with the priority crimes described above and guidelines for sentencing which are canvassed with the judiciary, and the review and upgrading of existing community sentencing options and examination of the potential roles of community service providers in this regard.

2.7.6 The National Programme on Diversion for Minor Offenders noted that the criminal justice system was enormously costly and often inappropriate for dealing with petty offenders, particularly juveniles, where stigmatisation can pose an intolerable burden on the normal developmental path to responsible adult citizenship. This programme aimed to divert petty offenders and juveniles out of the criminal justice system.  The Lead Agency was Welfare, assisted by the Departments of Correctional Services, Justice, Defence, Safety and Security and non-governmental organisations concerned with child welfare and the rehabilitation of offenders. The key actions were to extend the existing capacity for diversion on the basis of agreed national guidelines and criteria and to develop a standardised referral system, in consultation with Attorneys-General and the South African Police Services. 

2.7.7 The National Programme in relation to Secure Care for Juveniles argued that youthful offenders suspected of serious offences should not be held in standard prison or police cells. It was conceded that they do, however, need to be held securely, in an environment that limits unnecessary trauma and strengthens the likelihood of eventual reintegration into society. This would require the creation of special secure care facilities for young suspects and offenders. The Lead Agency was Welfare, through the inter-ministerial committee on Young People at Risk, which included the Departments of Justice, Safety and Security and Correctional Services. This team was to be assisted by other key departments such as Public Works, NGOs and the private sector. The key actions were to speed up the completion or conversion of necessary buildings for secure care facilities for juveniles and to implement legislative steps and social programmes to discourage the exploitation of juveniles by criminal syndicates.

2.7.8 The National Crime Prevention Strategy persuaded the Department to re-examine its core objectives and reprioritise its resources. The focus shifted to transforming South African prisons from being so-called "universities of crime" or "criminal headquarters" into effective rehabilitation centres that produce skilled and reformed individuals who are capable of successful reintegration into their communities as law-abiding citizens.

2.7.9 This period also saw the demilitarisation process from a paramilitary structure with military ranks, drill and parades, and a military command structure to a civilian government department. The 1994 White Paper reluctantly acknowledged that the militarised character of the Department may need reconsideration, but within the Department resistance to this direction amongst senior management resulted in a flawed process of demilitarisation. As a result, there was inadequate preparation for, little common understanding of the need for and consequences of demilitarisation, and a poorly managed process of demilitarisation. This precipitous demilitarisation coincided with the implementation of affirmative action in the Department which was carried out without due consideration of training and development of affirmed appointees. Demilitarisation required that a new form of basic, promotional and management training be put in place, but the manner of demilitarisation resulted in a hiatus in human resource development, which compounded the weaknesses in the management of the Department. The confused notion that demilitarisation meant a retreat from discipline and security further negatively impacted on the functioning of the Department.

2.7.10 Parallel to this was the passing of the Constitution in 1996, which provided the overall framework for governance in democratic South Africa , enshrined the Bill of Rights, and obliged all Government departments to align their core business with the Constitution and their modus operandi with the framework of governance. The Department undertook massive legislative reform in the period leading up to the passing of the Correctional Services Act (Act No. 111 of 1998) by Parliament. This legislation represented a total departure from the 1959 Act and embarked on a modern, internationally acceptable correctional system, designed within the framework of the 1996 Constitution. 

2.7.11 The most important features of the Correctional Services Act (Act 111 of 1998), are:

  • the entrenchment of the fundamental rights of offenders;
  • special emphasis on the rights of women and children;
  • a new disciplinary system for offenders;
  • various safeguards regarding the use of segregation and of force;
  • a framework for treatment, development and support services;
  • a refined community-involved release policy;
  • extensive external monitoring mechanisms, and
  • provision for public and private sector partnerships in terms of the building and operating of correctional centres. 

2.8 Strategic realignment of the Department of Correctional Service since 2000

2.8.1 The period 2000-2003 has been marked by consistent engagement with the strategic direction of the Department, as role-players have striven to interpret the purpose of the correctional system and unpack the policy direction necessary for successful delivery on rehabilitation and the prevention of repeat offending. 

2.8.2 The Department hosted a National Symposium on Correctional Services on 1 and 2 August 2000, attended by approximately 160 participants representing approximately 70 stakeholder organisations, which recognised the need to promote a collective social responsibility for the rehabilitation and reintegration of offenders into the community and recommended the establishment of a "Partnership Forum for Correctional Services". 

2.8.3 The objectives that the National Symposium focused on, were to:

  • develop a clearly articulated national strategy to attain the desired fundamental transformation of correctional services;
  • create a common understanding of the purpose of the correctional system;
  • create a firm foundation for coherent and cohesive role-playing by all sectors of society; and
  • achieve national consensus on the human development and rehabilitation of all offenders and their integration into the community as productive and law-abiding citizens.

2.8.4 As a result of a re-examination of the Department's strategic role in the fight against crime within the broader context of the criminal justice system and in terms of the priority programmes presented by the Justice, Crime Prevention and Security Cluster to the Cabinet Lekgotla held on the 22 and 23 January 2001, the Department committed itself to step up its campaign to put rehabilitation at the centre of all its activities, by identifying the enhancement of rehabilitation services as a key departmental objective for the Medium Term Expenditure Framework (MTEF) period. Government acknowledged the critical role played by the Department of Correctional Services in the long-term strategy of crime prevention through the reduction of repeat offending through the provisioning of effective rehabilitation services to offenders. 

2.8.5 To this end the Department identified the enhancement of rehabilitation services as a key starting point in contributing towards a crime-free society. The strategies developed towards the enhancement of rehabilitation, were the:

  • development of individualized need-based rehabilitation programmes;
  • marketing of rehabilitation services to increase offender participation;
  • establishment of formal partnerships with the community to strengthen the rehabilitation programmes and to create a common understanding;
  • promotion of a restorative approach to justice to create a platform for dialogue for the victim, the offender and the community, facilitating the healing process;
  • combating of illiteracy in correctional centres by providing ABET to offenders;
  • increase of production to enhance self-sufficiency and to contribute to the Integrated Sustainable Rural Development Strategy; and
  • increase of training facilities for the development of skills.

2.8.6 In the process of drafting subordinate legislation and implementing certain aspects of the Correctional Services Act, 1998 (the principal Act), certain amendments were made in order to fully implement the principal Act (Correctional Services Amendment Act, 2001), as well as to be more compliant with the provisions of the Constitution. Central to the Amendment Act were the:

  • treatment of offenders;
  • accommodation of disabled offenders and gender considerations;
  • disciplinary procedures for offenders;
  • new parole system;
  • treatment of child offenders; and the
  • use of firearms and other non-lethal incapacitating devices.

2.8.7 The internal 2001 strategic planning session in October 2002 resulted in the adoption of the Mvelaphanda Strategic Plan for 2002-2005, the thrust of which is that the Department needed to put rehabilitation at the centre of all the DCS's activities. The session identified unit management as the missing ingredient in the transformation of the South African correctional system and set a target to implement Unit Management in 80% of the prisons by the end of the forthcoming MTEF period ( 31 March 2005). Unit management is an approach that makes provision for:

  • the division of correctional centres into smaller manageable units;
  • improved interaction between staff and inmates;
  • improved and effective supervision;
  • increased participation in all programmes by offenders;
  • enhanced teamwork and a holistic approach; and
  • creation of mechanisms to address gangsterism. 

2.8.8 In 2002, the Department recognised that the incompleteness in the transformation of the Department had resulted in a lack of coherence of paradigm, and the lack of a common understanding of the meaning of rehabilitation across the entire Department. A concept document called ‘Conceptualising Rehabilitation' was developed for internal discussion in all components of the Department. Alongside this process, an approach to the development of a corporate culture that would support the philosophy of "rehabilitation and correction" was articulated. 

2.8.9 At the beginning of 2003, all of these processes had consolidated into an understanding of corrections as not merely the prevention of crime, but as a holistic phenomenon incorporating and encouraging social responsibility, social justice, active participation in democratic activities and a contribution towards making South Africa a better place to live in. As such, the DCS operates in the environment of integrated governance, requiring that policy processes in the Department should be aligned with the overall Government strategy, and specifically with the policy of the departments in the Justice, Peace and Security Cluster, the Social Sector and the Governance and Administration Clusters. Moreover, the Department has developed an understanding that correction within the DCS environment is achieved through the delivery of key services to offenders, and through interventions to change attitudes, behaviour and social circumstances in order to achieve the desired outcome of rehabilitation and social responsibility. 

2.9 Challenges encountered during the strategic realignment of the Department 

2.9.1 Throughout all of these periods, the Department has faced a range of challenges, some of which are inherent in correctional systems the world over, and some that have particular South African or time-specific dimensions. The current challenges faced are due to both inherent risks in correctional systems and dimensions due to the societal transformation that South Africa has gone through over the past decades. These challenges include:

  • overcrowding and the state of the DCS facilities;
  • institutional "Prison Culture" and corruption;
  • training for the new paradigm; and
  • structuring for the new paradigm. 

2.9.2 The Department regards overcrowding as it's most important challenge, as it has significant negative implications on the ability of the Department to deliver on its new Core Business. There are various causes of overcrowding, including the:

  • inefficient functioning of the criminal justice system;
  • the particularly high incarceration rate in South Africa when compared to international trends;
  • introduction of minimum sentences for particular categories of serious crime in 1997 resulting in an increase in the proportion of long-term offenders in the DCS facilities that will affect availability of bed space in the coming decade;
  • crime trends in South Africa , particularly in relation to serious violent crimes and serious economic offences;
  • levels of awaiting-trial detainees held in correctional centres; and
  • inadequate needs-driven facility planning in the Integrated Justice System.

2.9.3 The Department, in co-operation with partners in the JCPS, is attempting to address this issue through exploring various options. These include:

  • the awaiting-trial offender project aimed at reducing the detention cycle time of awaiting-trial detainees;
  • involvement in the Saturday courts project, which was introduced in ninety-nine courts countrywide;
  • the establishment of a Departmental Task Team to liaise with a task team working on overcrowding within the Security cluster at implementation level;
  • the utilization of sections 62[f] and 63[a] of the Criminal Procedure Act by the Heads of Prison in court applications which resulted in the release of prisoners; and
  • the use of the amendment of Section 81 of the Correctional Services Act to allow the release, under specific conditions, of awaiting-trial prisoners who have been allowed bail but could not afford to pay due to the prisoner's personal social conditions. 

2.9.4 The Department adopted a new approach to a cost-effective expansion strategy by building low-cost "Prototype" correctional facilities for medium and low-risk inmates, who are the majority of the country's offender population. This project was also aimed at consistent delivery of facilities that are consistent with rehabilitation and humane treatment.

2.9.5 In response to the challenge to transform the institutional culture within the Department, the DCS committed itself to the creation of a culture of good governance including the development of a Risk and Fraud Management Strategy and an internal investigative capacity, to ensure the cost-effective utilisation of resources and to address the ongoing incidents of corruption and mismanagement in the Department. Alongside this, the Department has established an 'Inspectorate Directorate' in terms of section 95 of the Correctional Services Act to advise the Commissioner on compliance or non-compliance by officials with Government and departmental policies.

2.9.6 The period 2001-2003 saw the development of a strategy of both external and internal processes to cleanse the Department in preparation for the provision of effective service delivery in response to allegations of corruption and financial mismanagement, findings of the Auditor-General in this regard, and reports to and appearances before the Standing Committee on Public Accounts (SCOPA). This strategy saw a series of external investigations conducted at the behest of the Minister of Correctional Services and Senior Management, which included:

  • The Department of Public Service and Administration management audit which culminated in a report presented to the President by the Minister of Correctional Services and the Minister of Public Service and Administration, dated 18 February 2000;
  • A second phase of the investigation, conducted jointly by the Department of Public Service and Administration (DPSA) and the Public Service Commission (PSC) to concentrate on allegations to do with human resource malpractices resulting in reports submitted to the President, Cabinet and Parliamentary Committees in March 2001;
  • The establishment of a Judicial Commission of Inquiry (the Jali Commission) with powers to summon and cross-examine witnesses, obtaining evidence in relation to alleged incidents of corruption, crime, mal-administration, violence or intimidation in the Department of Correctional Services in terms of Presidential Minute No. 423 of 8 August 2001;
  • The Proclamation of authorisation of the Special Investigation Unit (SIU) to provide forensic investigations into corruption and mal-administration in the Department in support of the Jali Commission's work, and to ensure investigation for effective prosecution and conviction; and
  • Alongside this, the Department intensified the prevention of corruption and mismanagement through tightening of management systems and increasing compliance with policy and controls, and through internal sanction and referral to external law enforcement agencies where appropriate.

2.9.7 The 2001 Strategic Planning processes had generated recognition that the DCS was inappropriately structured and engineered for delivery on rehabilitation. External consultants were brought in to facilitate the alignment of the DCS systems, processes and structures, with the expectation that the outcome of this process should assist in positioning the Department to properly deliver on rehabilitation as departmental core business. Expected outcomes of the "Gearing DCS for Rehabilitation" project include:

  • designing a clearly defined organizational structure with identified key functions;
  • alignment of the organizational structure to the core business;
  • analysis of business processes;
  • alignment of budget with core business;
  • determination of the skills and competencies required to perform; and
  • designing information systems appropriate to the new structure. 

2.9.8 At the same time, the Department of Public Service and Administration began the implementation of a Public Service Central Bargaining Chamber Resolution, No 7 of 2002, which facilitated the overall transformation and restructuring of all government departments within specific time frames. The Department integrated the two processes in order to ensure coherence of the Resolution 7/2002 process with the strategic direction that was emerging for the Department.

2.9.9 The strategic direction that has developed in the Department in the democratic dispensation has faced the Department with major human resource development challenges – to ensure the paradigm shift of existing personnel, as well as the development of an appropriate recruitment, promotion and retention strategy for the various categories of personnel required to deliver on the rehabilitation mandate.