Many Pollsmoor prisoners live in cramped conditions. Photo: Mikhael Subotzky, courtesy Goodman Gallery (this photo is not under Creative Commons license)
30 November 2016
The national government and the head of Pollsmoor’s remand facility are being taken to court on Monday by Sonke Gender Justice in an attempt to compel them to address the “appalling” conditions at Pollsmoor’s remand facility.
The remand centre is for awaiting trial prisoners. These are people who have either not been convicted or sentenced. Some will be found not guilty of any crime.
Sonke Gender Justice, represented by Lawyers for Human Rights in the Western Cape High Court, believes that detainees are “routinely, and on a continuing basis, deprived of basic amenities to which they are entitled to by law”.
These amenities include exercise, nutrition, accommodation, ablution facilities and healthcare services that are guaranteed by law. In their court papers Sonke’s lawyers state that such a failure is inconsistent with the Constitution.
According to the law, detainees must be detained under “conditions of human dignity”. They must be provided with an “adequate diet to promote good health”, the opportunity to exercise for one hour daily, adequate health care services and with a separate bed with bedding that provides adequate warmth.
Current and former detainees are quoted as witnesses in Sonke Gender Justice’s heads of argument.
“When I arrived …. I told them that I was HIV-positive. They never gave me my antiretroviral treatment, even though I had told them my status and asked them for medication. As a result, I defaulted on my HIV treatment. …. As a result of my detention at Pollsmoor [remand facility] my CD4 count dropped and my viral load has increased,” states Mvelisi Sitokisi.
“I feel really claustrophobic all the time,” says Rafiek Dreyer.
Dreyer also claims that there is not enough food for everyone. “The ‘gangboys’ sell the meat to the detainees that have the cash and want to purchase extra.”
“There is not enough toilet paper, cleaning materials or soap. So the place is disgusting and people get sick all the time,” he says.
Athenkosi Myoli says that there are not enough beds in the cell for everyone, so detainees either share beds or sleep on the floor. “Detainees affiliated with gangs were given preferential treatment in this regard….. I joined a gang to make things easier for myself,” says Myoli.
Clayton Paulse adds that they are only allowed out of their cells for “about an hour per week”.
The government has not opposed the application, nor has it filed an affidavit that explains the situation, but the head of Pollsmoor’s remand facility is opposing the application. The acting head of the remand facility Cecil Jacobs asks in his answering affidavit for the application to be dismissed with costs.
The aim of the application is to force the government to develop “a comprehensive plan, including timeframes for its implementation” that will address these deficiencies as well as the deficiencies that were identified by Justice Edwin Cameron’s report on his visit to the facility.
If successful, the government would be compelled to provide a report to the court within a month detailing what it has done to correct the conditions, as well as to meet Cameron’s recommendations. In addition, they would have to state what further steps they will take to correct the “unlawful conditions”.
The court application also seeks to force the head of the remand facility to submit a report within one month on the findings of weekly cell inspections from December 2012 to date.
In Cameron’s report he detailed the conditions that he witnessed when he visited the remand facility in 2015 – conditions that echo the detainees’ claims.
During his visit, the facility was at just over 300% capacity with 4,198 detainees. In March this year there were 4,325 detainees. The remand facility is only meant to house 1,619 detainees.
“The overcrowding is practically, undoubtedly and daily degrading and hazardous for every detainee subjected to it,” states Cameron’s report.
The “minimum permissible cell area” for a detainee in a communal cell is 3.344m2. According to Sonke Gender Justice, from the beginning of January 2015 to the end of April 2015, each detainee had about a third of this space.
Cameron’s report described the cells as “filthy and cramped” and the ablution facilities “deplorable”.
Following his report, the Department of Correctional services launched an “Action Plan” that Sonke Gender Justice described as, for the most part, “vague, ambiguous and lacking in specific timeframes”.
In his answering affidavit, Jacobs describes the situation of overcrowding as “uncontrollable” but despite this, he opposes the application.
Jacobs says that some of the detainees who are quoted as witnesses “readily admit their gang membership” and that none of them say that they have complained to a unit official.
Jacobs also points to the serious charges that most of the witnesses were arrested on. He adds that most of the statements from the witnesses “seem to have been obtained in a very one-sided and selective manner” that didn’t afford him or any officials the chance to respond.
He also takes issue with Sonke Gender Justice just citing the national government as a respondent saying that this is “vague and embarrassing in failing to identify, properly or at all, which sphere of government it is citing and from which sphere specifically it is claiming the relief”.
Additionally, Jacobs believes that Cameron’s report constitutes “inadmissible hearsay evidence” and should be struck from the record as none of the respondents have consented to its admission.
On a number of occasions Jacobs also says that the situation at Pollsmoor has changed since Cameron’s report and lays out these changes in a second “Action Plan”. However, Sonke Gender Justice’s heads of argument claim that, “The undeniable (and undenied) truth is that conditions at Pollsmoor RDF remain appalling and inhuman. The second Action Plan does not contradict this.”
The case will begin on 5 December at the Western Cape High Court.