In 2011, while clerking for Justice Edwin Cameron, I was fortunate enough to accompany him on the annual prison visit that each justice of the court undertakes in terms of Section 99 of the Correctional Services Act, which provides that a judge of the Constitutional Court, Supreme Court of Appeal or High Court, and a magistrate within his or her area of jurisdiction, may visit a correctional centre at any time.
The purpose is to visit and inspect correctional centres, and then compile a report recording observations and findings about the correctional centre based on the inspection.
At the time I was not particularly looking forward to the prison visit. Out of all of the human rights issues I cared about, prison conditions was an unranked issue on my list of priorities.
There were more pressing issues in the outside world which were more deserving of the nation’s attention than the plight of criminals in jail. So with scepticism and doubt in my mind, Justice Cameron, my fellow law clerks and I set off on our journey to the Northern Cape to visit two prisons.
We had a meeting with the prison officials first before we were unleashed on what I thought would be a wilderness inhabited by the worst human beings. As we walked through the prison complex I felt unsafe and stuck close to Justice Cameron to shield me from any possible danger.
Cameron walked through each section engaging all the inmates as if he was walking through a kindergarten – he had no fear and most importantly no judgement.
He listened intently to each inmate’s grievance while I concentrated on not being left behind because Justice Cameron seemed to have forgotten that he was accompanied by his very nervous female law clerk – that’s how comfortable he was and how comfortable he assumed I was.
At some point, my anxiety and discomfort bothered me. I was ashamed of my fear because it was unprofessional. I came into the experience with my self-righteous judgement on those who had already been judged by the law and who were now paying the price for their crimes.
These prisoners were repaying their debt to society, they did not owe me anything but I owed them my professionalism. As the inmates spoke I realised that what they wanted was not unreasonable – they wanted access to books, newspapers, telephones and medication, etc.
Towards the end of our inspection, we were told we would wrap up our visit with a lunch that was prepared by two inmates. I asked the official what these inmates had been imprisoned for and he simply replied: “rape”. I began to panic at the idea of being served food by two rapists. Even though I had had a change of heart and had opened up to what the prisoners had to say there was no way I was going to eat food prepared by the hands of two rapists. My stomach churned at the idea.
As we walked to the dining area I was thinking of every excuse to decline the food. The officials seated us in a private dining room and the plates of food were brought out. The chefs/rapists remained in the kitchen. I watched Justice Cameron tuck in while I sat there contemplating what to do.
Then I turned towards the kitchen and saw something that changed everything. It was the two chefs/rapists looking back at me with nervous, expectant faces. They were very childlike.
I imagined the anxiety they must have felt preparing a meal for a Constitutional Court judge. They were looking at us for approval and possibly our approval would represent approval from the outside world from which they had been banished.
When I realised that a simple act of enjoying their meal versus sending my plate back untouched could make a difference in their rehabilitation, I had to reciprocate the effort they had made.
They were trying and I had to meet them halfway. Not only did I eat the meal, I asked the officials to pass on my compliments.
The day before our visit was 16 June and the officials informed me that our chefs had participated in commemorative events in the local community where they shared their experiences with young people. From that moment on, I knew that the penal system was something I should care about.
I left that prison a less judgemental person. We see people in prison and automatically think they are monsters when we have no idea what happened in their lives to land them in prison.
What happened in the childhoods? Were their parents there? What socio-economic circumstances were they born into? Who had failed them?
Why is it that it is predominantly black men who are locked up in these houses of horror?
Are we saying black men are naturally predisposed to criminal activity or is there a systematic failure that we conveniently gloss over?
We never take the time to ask these questions but some of us, like me, sanctimoniously judge forgetting that it only takes a couple of drinks too many or a fit of road rage or any number of inexplicable things that can go wrong to land any of us in prison, discarded by the world.
My prison visit experience and Justice Cameron’s report on Pollsmoor Prison a couple of years ago, which paints an even grimmer picture, prompted me to look at the purpose of our penal system.
Pollsmoor is at over 300% capacity. Some inmates reported they had been assaulted by correctional staff, which was also a common complaint during our 2011 prison visit. Several inmates complained of injuries and infections they had sustained, which the medical staff had neglected.
Many complained of an inadequate quantity and quality of meals.
The last meal is in the early afternoon between 1pm and 2pm.
Other inmates reported that they had not been let out of their cell for an entire month.
Several inmates pointed to a sickly detainee who had an extremely swollen and visible gland. They said he was given medication, but it was not helping.
They said there had been no follow-up treatment. Inmates said many suffered from scabies because of the unhygienic and overcrowded conditions in their cell.
Justice Cameron reports that he checked the toilet in one of the cells. It did not flush and the sink did not drain which produced a rancid stench. One inmate poignantly expressed: “We’re human beings, but we’re treated worse than animals.”
What judgement should be passed on us as a nation because of the state of our prisons?
Which of our values, such as ubuntu, that we so proudly broadcast to the world, are reflected by what is happening inside our prisons?
Have we abolished the death sentence only to replace it with a further traumatising of the human spirit?
The two chefs are the exception and not the rule. They represent what can happen when a penal system seeks to restore and rehabilitate rather than simply punish. It has been said that restorative justice has the potential to address the issues facing justice systems in Africa today. Restorative justice is “the mending process for renewal of damaged personal and communal relationships”.
“The victim is the focal point, and the goal is to heal and renew the victim’s physical, emotional, mental and spiritual well-being. It also involves deliberate acts by the offender to regain dignity and trust and to return to a healthy physical, emotional, mental and spiritual state.
“These are necessary for the offender and victim to save face and to restore personal and communal harmony. The communal aspect allows for crime to be viewed as a natural human error that requires corrective intervention by families and elders or tribal leaders.
“Thus, offenders remain an integral part of the community because of their important role in defining the boundaries of appropriate and inappropriate behaviour and the consequences associated with misconduct.”
Justice is then not only a judge’s determination but also those of the victim, the community and the offender.
From what I witnessed during our prison visit, our penal system is not designed to humanise its subjects; in fact, it dehumanises, leaving us no better off as a nation.
Without excusing criminality, it must be acknowledged that many people, especially black people, are born into desperate circumstances and for many prison time is inevitable. Inequality cannot be fixed overnight but in the meantime, we can take measures to ensure that the criminality it produces is tackled in a manner that doesn’t tarnish our collective soul.
Justice Yvonne Mokgoro has stated in one of her rulings that in other jurisdictions, even the most evil offender, it has been held, “remains a human being possessed of a common human dignity”.
If I was ever raped I do not know how much goodwill I would have towards the rapist, but I hope I will still see the virtue of a world where it is possible for a rapist to leave prison as a chef. DM
"Without mathematics there’s nothing you can do. Everything around you is mathematics. Everything around you is numbers." ~ Shakuntala Devi