Breaking the crime cycle — Bail Fund could ease prison overcrowding

Correctional Services Minister Dr Pieter Groenewald has said remand detainees have a direct bearing on prisons’ bed capacity, which is one of several factors contributing to prison overcrowding.

There are just 107,000 beds in South African prisons, but about 166,000 inmates are housed in the country’s 243 correctional centres, resulting in a 53% overcrowding rate. This negatively affects safety and security, gang violence, and the success of rehabilitation programmes.

In March this year, Daily Maverick’s Caryn Dolley reported that cellphones, alcohol, smoking pipes, drugs and even tattoo machines are passing through South Africa’s overcrowded prisons as inmates and corrupt officials collude to form a key part of organised crime networks.

Read more: Jailhouse rot – SA prisons plagued by a cellphones, cash, drugs, knives and alcohol smuggling hub

Groenewald, speaking during the Department of Correctional Services (DCS) budget vote in July, said there were 107,067 bed spaces available, currently occupied by 104,550 sentenced inmates.

There are almost 60,000 remand detainees (those awaiting trial or sentencing), pushing the number of beds needed to around 166,000.

The minister stressed that remand detainees significantly contributed to overcrowding, noting that the department had to admit all court-referred persons, regardless of capacity.

Currently, 2,530 remand detainees remained in custody solely because they could not afford bail of R1,000 or less, despite having been granted bail by courts. Keeping each of these individuals in custody costs the taxpayer R463 per person per day.

Prison overcrowding and high recidivism rates are linked, creating a dangerous cycle. Overcrowded facilities make it impossible to provide adequate living conditions and effective rehabilitation programmes. Without effective rehabilitation, ex-prisoners are more likely to reoffend upon release, which contributes to more overcrowding when they re-enter the prison system.

Read more: The Promise — how a hardened Cape Flats gangster beat the recidivism trap

Legal strategies fail to curb overcrowding

Another impediment to overcrowding, as heard by the parliamentary correctional services committee on Friday, 25 July, was the low success rate of legislation targeted at reducing overcrowding in correctional facilities around the country.

The DCS briefed the committee on the use of Section 49G of the Correctional Services Act (CSA) and Section 62F of the Criminal Procedures Act (CPA) applications. Both sections aim to reduce overcrowding in correctional facilities.

Section 49G says a remand detainee may not be detained for more than two years without the matter being brought to the attention of the court.

The head of the remand centre must refer the case to the court at least three months before the two-year detention period lapses. If the detainee remains in custody following the initial review, further submissions to the court must be made on an annual basis.

Section 62F of the CPA allows courts to impose additional bail conditions, such as placing an accused person under probation or correctional supervision, rather than in remand. 

Both sections have done little to alleviate overcrowding. The committee heard that Section 62F was underused while the success rate for the 12,283 Section 49G applications in 2022/23 was 1.25% nationally, with the Eastern Cape and Western Cape both indicating a 0% success rate.

“In terms of the outcomes of Section 49G application, especially relating to the Eastern Cape, it’s a very serious concern. The committee will raise this with the Minister of Justice and Constitutional Development that deals with referrals,” said correctional services committee chairperson Kgomotso Ramolobeng.

Read more: South Africa’s Law Reform Commission unveils ambitious proposals to transform criminal justice system

Efforts at solutions

The Bail Fund could offer a viable solution to easing overcrowding in correctional facilities. The fund aims to address the injustice faced by remand detainees who cannot afford bail amounts under R1,000 by providing financial assistance. 

The fund will rely solely on private funding. A pilot project in the Western Cape is being developed to test its feasibility, with eligibility criteria excluding individuals accused of serious crimes such as gender-based violence (GBV). Courts will determine suitability, ensuring beneficiaries do not pose a public risk, have a fixed address and will comply with bail conditions.

The fund is led by the Judicial Inspectorate for Correctional Services (Jics) with support from the Bertha Foundation and other stakeholders. It has produced a feasibility study and raised roughly half of the required pilot money through philanthropy.

A trust has been formed to oversee the fund. The next stages are to secure additional funding, designate trustees and finalise eligibility guidelines.

Judicial Inspectorate for Correctional Service (Jics) inspecting Judge Edwin Cameron has described the more than 2,500 remand detainees who remain in prison because they can’t afford bail as “prisoners of poverty”. He said it was a grave injustice which significantly contributed to South Africa’s prison overcrowding problem.

Parliamentary committee chairperson Ms Kgomotso Anthea Ramolobeng indicated that committee members agreed that much work needed to be done on the project, including an extensive public participation process to establish whether communities would be in favour of such a fund.

“The committee encouraged Jics to continue with its groundwork on the project with other stakeholders like the South African Police Service and the NPA. It is important to thoroughly engage communities, as offenders on bail will have to go back to families and communities.

“The committee will monitor this space and engage Jics and other stakeholders once it has sight of a more comprehensive plan,” she said. 

Read more: Police parliamentary committee asks for urgent bail policy reform for gang crimes

Foreign nationals ‘extra burden’

To alleviate overcrowding in correctional facilities, Groenewald wants to deport foreign prisoners. More than 12,000 foreign prisoners make up 19% of the remand population, which the minister says contributes to overcrowding. Another about 12,000 are serving sentences, who make up just over 12% of sentenced prisoners.

During his budget speech, Groenewald emphasised: “The South African taxpayer foots the bill for just over 24,000 foreign nationals. Calculated at R463 per day, this results in an expense of R11,112,000 per day. We are currently exploring various solutions, including diplomatic approaches.”

He said bilateral engagements with South African Development Community countries to deport offenders who were foreign nationals aimed to ease overcrowding in correctional facilities.

The process is already under way, with the Protocol on the Management of Foreign Nationals: Remand Detainees and Persons Detained for Deportation signed by Correctional Services, SAPS, and the Department of Home Affairs.

According to the minister, a process is under way to amend the Criminal Procedure Act to enable the deportation of offenders who were foreign nationals. DM