Last year, Judge Saldanha of the High Court (Western Cape Division) found that the conditions of Pollsmoor Prison were unconstitutional. The court ordered government to provide any reasons why the number of prisoners could not be reduced to the court before 21 December 2017. If the government failed to provide adequate reasons, Pollsmoor officials would be ordered to reduce the number of prisoners it held from 300% to 120%.
The government was also required to develop a plan to improve the conditions at Pollsmoor including providing sufficient food, accommodation, healthcare services and toilets to inmates. The decision, handed down on 5 December 2016, represented a significant victory for prisoner rights.
The reasons for the decision (i.e. the judgment) were delivered on 23 February 2017 and are a scathing indictment on the conditions at Pollsmoor and, to some degree, placed the blame on prison officials. The judgment began by noting that head of the facility had ‘simply failed to put up any substantive defence’ to the application brought by Sonke. Instead, the prison relied entirely on challenges based on technicalities, all of which were rejected.
Judge Saldanha stated that the ‘central feature’ of Pollsmoor Prison is ‘hopelessly inadequate infrastructure’ and it’s inability to provide detainees with the conditions required under the Constitution.
The judgment also mentioned the tumultuous history Pollsmoor which included detainee suing the prison for creating conditions that caused him to contract tuberculosis while he awaited trial. The overcrowding, which in 2003 was over 230%, was found to be a material factor in allowing TB to spread through the prison population. Over the years, the overcrowding in Pollsmoor grew worse and eventually hit over 300% capacity in February 2015.
South Africa has adopted several laws that protect the rights of prisoners including guaranteed access to medical care and dignified conditions of detention. However, the circumstances at Pollsmoor Prison over the last decade demonstrate the huge gap between prisoner’s rights and the reality in prisons.
The Minister of Justice and Correctional Services submitted papers follow the interim order made last year which argued that the order was not a practical way to address overcrowding. However, his papers also indicated that the Regional Commissioner was already working to reduce the detainee population but that it would not be feasible to reduce the capacity to 120%. The Minister also indicated that they were moving detainees from the remand facility into Pollsmoor Medium (also an overcrowded facility) and other facilities in the region. Even through these efforts, the Regional Commissioner would only be able to reduce the population to 150% of approved capacity.
In light of the Minister’s papers, the court ultimately ordered that the number of detainees be reduced to 150% of approved capacity within six months of the order being made. To continue oversight of this process, the Minister and head of Pollsmoor are required to file further reports with the court.
This case represents a significant victory in exposing the true conditions at Pollsmoor Prison and taking steps to improve conditions. However, the judgment has resulted in a focus on reducing capacity but doesn’t address the poor nutrition and lack of adequate sanitary and other facilities. Even more problematically, the prisoners are simply being moved to other crowded facilities, some of which house convicted prisoners and others which may be too far away for detainee’s families to visit. While reducing overcrowding is a key component to improving prison conditions, it will ultimately need to be coupled action in order to meaningfully protect and realise the rights of prisoners in South Africa.