Our prisons are full, let's clear out the jails, says Correctional Services

By Ziyanda Mgandela Time of article published Sep 28, 2019

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Durban - Prisons are packed and crime is spiking, but the Department of Correctional Services wants fewer criminals to be sent to jail.

Inmates should be given parole and those convicted of “lesser crimes” should be sentenced to correctional supervision, it says.

The SAPS, however, wants criminals to serve lengthier sentences, saying that knowing conditions would be “unpleasant” could act as a deterrent.

Lenient sentences and paroles would make their job of fighting crime “more challenging”. Neither the department nor the SAPS would comment on what constituted a “lesser crime”.

The Ministry of Justice and Correctional Services, however, said criminal offences were defined in common law and in statutory law, and sentencing was the prerogative of trial courts.

“The classification and or description of a crime as a petty crime is used during sentencing by a judge or magistrate,” said Chrispin Phiri, spokesperson for the Ministry of Justice and Correctional Services.

“Judicial officers consider three things: the gravity of the offence, the circumstances of the offender and public interest, and there are statutory mandatory minimum standards.

“Trial courts are permitted to depart from the prescribed minimum sentences whenever they find a ‘substantial or compelling circumstance’ warranting a departure,” said Phiri.

There were also controls limiting the discretion of trial courts.

“The first is the supervisory power of appellate courts, which can overturn sentences imposed by trial courts. However, this power is not routinely exercised in view of the fact that sentencing is understood as a primary function of trial courts. An appellate court will interfere with a sentence imposed by a trial court only if there is irregularity or misdirection, or if the sentence is disturbingly inappropriate.

“The second is a statutory mandatory minimum sentencing regime applicable to certain serious offences including murder, rape, drug dealing, firearms smuggling and human trafficking for sexual purposes.

“There is a constitutional requirement that the punishment imposed, including when it is set by statute, must not be disproportionate to the offence.”

A sentence could also be increased on appeal.

Correctional Services said the number of inmates in the country was 162875, while its capacity stood at 118572. This represented a prison occupancy of 37% more than it was equipped to hold.

Correctional Services Department spokesperson Singabakho Nxumalo said its primary responsibility was to enforce sentences of the court and that it had no legal powers to refuse detention of inmates on the basis of inadequate bed space and other factors resulting in overcrowding of inmates.

The department has to devise strategies to deal with inmate numbers, which may strike well above its approved bed capacity, while ensuring its mandate is not compromised, Nxumalo said.

It believes the judiciary should consider other forms of punishment instead of sending “all” criminals to jail.

Part of the department’s strategy to relieve overcrowding includes managing levels of sentenced offenders by converting sentences to community correctional supervision, release on parole or transfers between correctional centres.

Nxumalo said correctional supervision would have to be enhanced so it could be used as an appropriate sentence for less serious crimes.

“The department is referring to cases where bail of R1000 or less has been granted by the court. We cannot make a determination on what is a less serious crime. We can only be guided by the court’s decision,” Nxumalo said.

He said inmates sentenced to shorter periods could apply to Correctional Services to be released on correctional supervision after serving one-third of their sentences.

National SAPS spokesperson Brigadier Vish Naidoo said their mandate was to prevent, combat and investigate crime, and conviction and punishment rested with the Department of Justice and the National Prosecuting Authority.

However, Naidoo said without fitting punishment for criminals, their efforts to fight crime would be more challenging. He said the SAPS would prefer criminals to remain in custody for as long as possible, and that lengthy sentences served as a deterrent.

“The fact that prisons are overcrowded could also serve as a deterrent for criminals. If such information is communicated extensively, criminals will know that apart from serving long sentences, they will know their stay in prison will be even more unpleasant.”

The Independent on Saturday

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