Thabo Bester and Hundreds of Other Prisoners Kept in Unlawful Conditions, Says Inspectorate

A Judicial Inspectorate for Correctional Services report says hundreds of prisoners are held in solitary confinement and this is a form of torture.

• Hundreds of prisoners at Kgosi Mampuru II C-Max and Ebongweni Super-Maximum Correctional Centre are held in isolation for 23 hours a day, the Judicial Inspectorate for Correctional Services (JICS) has found.
• JICS says these conditions amount to solitary confinement and have serious effects on prisoners’ mental and physical health.
• The conditions are in violation of national and international norms and prisoners’ constitutional rights, JICS says.
• The Department of Correctional Services, however, denies that solitary confinement is practised in South Africa.

The Judicial Inspectorate for Correctional Services (JICS) believes that the conditions in which hundreds of prisoners are being held, including Thabo Bester, are unlawful.

Kgosi Mampuru II C-Max (C-Max) and Ebongweni Super-Maximum Correctional Centre (Ebongweni) hold thousands of “high-risk” prisoners in single cells.

According to a 2021 report by JICS, hundreds of these prisoners are kept for up to 23 hours a day in their cells. They are allowed only one hour for exercise or recreation, sometimes in small isolated “exercise cages”, according to JICS.

At Ebongweni, JICS found that 749 prisoners (more than half of the prison’s approved capacity) were being kept in isolation in 2021. In at least one case, JICS found that a prisoner was kept in isolation for more than nine years.

Prisoners kept in these conditions are “high risk offenders who due to the nature of their crimes pose a serious security risk to society”, according to the Department of Correctional Services.

But according to the JICS report, the conditions amount to solitary confinement, which is a form of torture that has serious consequences for prisoners’ psychological, neurological and physical health.

It also impacts the well-being of the correctional services officials who supervise these conditions, which has a knock-on effect on their families and loved ones, JICS found.

Isolated prisoners interviewed by JICS said that they had lost count of days and nights and that their mental health was deteriorating.

The Department of Correctional Services denies that there is solitary confinement in South Africa. The Department also denies that exercise takes place in “cages”.

In a response to GroundUp, department spokesperson Singabakho Nxumalo said that prisoners at Ebongweni and C-Max are indeed held in single cells, but that they participate in structured day programmes outside of their cells, during which they are handcuffed for the safety of other prisoners and warders. They are given an additional hour of mandatory exercise time.

GroundUp sent follow-up questions to Nxumalo, including asking whether the department can categorically state that no prisoners at Ebongweni or C-Max are kept in their cells for 23 hours a day for longer than 30 days.

Nxumalo responded: “I have responded to your enquiry. Rather say you are not happy with my response. Finished.”

Unlawful conditions

Yet the JICS report found that hundreds of prisoners are kept in complete isolation, spending 23 hours a day in their cells. JICS argues that in these cases, prisoners’ constitutional rights are violated, including rights to human dignity, not to be tortured, and not to be treated cruelly, inhumanely or degradingly.

JICS believes that the conditions of isolated prisoners at C-Max and Ebongweni are not consistent with the Correctional Services Act or international treaties on prisoner rights to which South Africa is a party, including the United Nation’s Nelson Mandela Rules.

In 2005, the Jali Commission of Inquiry into prison conditions concluded that solitary confinement “is a product of our past and should not be resorted to as a norm by prison officials in the new democratic order”.

The Commission also noted that “it is commonly accepted that solitary confinement is one of the worst forms of torture that can be imposed on another human being”.

The Correctional Services Act was amended in 2008 to outlaw solitary confinement, instead allowing “segregation” with strict conditions.

The Correctional Services Act states that segregation may not exceed seven days, unless deemed necessary by the head of the prison, in which case the period may be extended to no longer than 30 days.

JICS believes that the conditions for “segregation” prescribed by the Correctional Services Act are not always met at C-Max and Ebongweni. These conditions include that segregated prisoners must be visited by a prison official every four hours and by the head of the prison at least once a day and must have their health checked daily.

Nxumalo told GroundUp that “routine checks are conducted”.

The JICS report also found that the infrastructure at C-Max and Ebongweni does not meet the accommodation requirements of the Correctional Services Act.

The JICS report explains how the conditions of solitary confinement and Kgosi Mampuru C-Max and Ebongweni prisons were created in the late 1990s when a “tough on crime” approach was adopted to deal with high levels of crime and high escape rates in South African prisons. The conditions were inspired by similar prison structures in the United States.

JICS says there is “little evidence” to suggest that solitary confinement makes prisons safer. The Jali Commission found that “no scientific studies nor persuasive evidence have been put before the Commission that justify the establishment of institutions like C-Max or the retention of such detention conditions in our prison system”.

JICS also says that there has been no monitoring or evaluation to determine whether the “three-phase” behaviour modification programs (a series of rehabilitative programmes for high-risk offenders) are effective in changing behaviour.

Alternatives to solitary

There are alternatives for Correctional Services to prevent escapes and protect other prisoners and officials, the JICS report says. It includes fixing CCTV cameras that are out of order.

JICS wants the department to change its policies so that solitary confinement no longer takes place.

In the mean-time, JICS recommends

• not subjecting prisoners to long-term solitary confinement unless it is “truly necessary for safety and security”;
• using solitary confinement “for the least time possible”;
• not confining prisoners who are vulnerable to medical or mental health injury in solitary confinement;
• increasing out-of-cell time;
• avoiding sensory deprivation or complete social isolation;
• close monitoring of prisoners by medical staff;
• realistic incentives and support for prisoners to follow facility rules; and
• empowering independent oversight by JICS, including unimpeded access to policies and documents.

Justine Gericke, spokesperson for JICS, told GroundUp that JICS has submitted critical comments on the Standard Operating Procedures for C-Max and Ebongweni, and has raised issues with both the Minister and the parliamentary portfolio committee. “These engagements have so far produced no changes to the operation of C-Max and Ebongweni.”

Euné Oelofsen, spokesperson for Correctional Services Minister Pieter Groenewald, who took office in June, told GroundUp that the minister has engaged with JICS and seen the report, and that he is awaiting feedback from the department.

“The Minister remains committed to aligning our facilities with the values and norms entrenched in the Nelson Mandela Rules,” Oelofsen told GroundUp.

Thabo Bester’s prison conditions

Thabo Bester, who is continuing his life sentence for murder and rape after escaping from Mangaung Correctional Centre in May 2022, has raised the matter of his prison conditions during several court appearances and in a media statement.

On Tuesday, he approached the Gauteng High Court in Pretoria, arguing that he needs a laptop to prepare for his legal matters. However, the application was dismissed due to lack of urgency. Bester has indicated he still intends on challenging his prison conditions in court.

“I am under circumstances that are inhumane. I live in a cage; I exercise in a cage. I am by myself. I don’t even have time [a clock],” Bester told the court on Tuesday.

In a statement in July, Correctional Services denied that Bester is in solitary confinement. The statement says that Bester is allowed one hour of exercise a day in addition to lawyers visits outside the cells.

GroundUp asked Nxumalo whether Bester is given access to the structured day programme outside of his cell, but he declined to respond.

Gericke told GroundUp that during a visit to C-Max on 24 June, Inspecting Judge Edwin Cameron visited Bester in his cell. Bester was invited to express complaints to Cameron, but did not do so. Gericke says that JICS has not received an official complaint from Bester.

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