PAIA request to DCS: ‘Who is in our prisons?’ – FMF

Those who have committed victimless or harmless so-called “crimes” are possibly being housed with hardened criminals

FMF delivers PAIA request to Correctional Services: ‘Who is in our prisons?’

16 April 2024

The Free Market Foundation (FMF) Section 12 Initiative on Wednesday, 3 April 2024, delivered a Promotion of Access to Information Act (PAIA) request to the Department of Correctional Services, seeking accurate information about those who presently keep our prisons 40% overfull.

The PAIA asks Correctional Services to account comprehensively on the following points, among others:

The number of incarcerated persons in South Africa;

The number of offenders incarcerated by Correctional Services, broken down by the offences for which they have been convicted;

The number of unsentenced persons incarcerated;

The Correctional Services policies and directives regarding how inmate information is captured;

The number of correctional facilities in the country;

The total inmate capacity of each facility and of the whole correctional system;

The number of correctional facilities that have closed down in the past five years;

A list of all correctional facilities categorised by their nature – security level, gender and age segregation, etc.;

All information regarding any new correctional facilities being constructed, including budgets, capacity, and estimated time of completion; and

All information regarding any new correctional facilities being planned for future establishment.

The Department of Correctional Services has 30 days to reply to the application, with the option to extend the information period by a further 30 days. Section 32(1)(a) of the Constitution provides that ‘everyone has the right to access any information held by the state.’

Overcriminalised society, overfull prisons

The Section 12 Initiative, through its Criminalisation Index, has demonstrated that South African law is overcriminalised, meaning that many forms of behaviour and conduct that cause no harm or, only civil harm, have been brought under the rubric of criminal law.

The result is that the South African Police Service (SAPS) and National Prosecuting Authority (NPA) expend precious, scarce resources on combating innocuous, victimless ‘offences’ when they should be focusing on South Africa’s staggering, out-of-control violent crime crisis.

‘When individuals are successfully prosecuted for these nonsensical “crimes,” they often have to spend time in a Correctional Services facility,’ says FMF Head of Policy, Martin van Staden. ‘As South Africans, we need to know that our very limited prison capacity is being rationally utilised to keep violent criminals off the street, rather than housing those who have done nothing wrong but transgress some arbitrary rule.’

Some of these arbitrary rules include filming and then distributing or showing that film without being registered with the Films and Publications Board (up to 6 months in prison), refusing to appear as a witness in an occupational health and safety matter (up to 1 year in prison), or deliberately causing ‘inconvenience’ to a fellow passenger on public transport (up to 3 months in prison). A new law before Parliament would make it a criminal offence to smoke or vape in one’s own home if one also works from home (up to 5 years in prison).

‘This is a small taste of the types of “criminality” that could land any peaceful South African in prison. We expect to discover hundreds, if not thousands, of similarly nonsensical criminalised activities in the Statute Book,’ says Van Staden.

‘It is more than likely that people who have committed one of the myriad victimless or harmless so-called “crimes” found in our law are being housed in cramped prison cells alongside real criminals, like murderers and rapists. If this is the case – and we need to know urgently – then drastic and immediate reforms to our penal system are necessary,’ concludes Van Staden.

More information about the FMF’s Section 12 Initiative and its Criminalisation Index can be found at www.section12.org.za.

Read the full PAIA application here (part 1) and here (part 2).

Issued by Martin van Staden, Head of Policy, Free Market Foundation, 16 April 2024