Retributive Justice and a Rehabilitative Approach to Offenders in South Africa

The Department of Correctional Services (DCS) is tasked with the responsibility of detaining ‘offenders’ and at the same time to ensure that while in their custody, ‘offenders’ are rehabilitated so as to prevent them from committing the same crimes again.

Published on 16 July 2009 in ISS Today

The Department of Correctional Services (DCS) is tasked with the responsibility of detaining ‘offenders’* and at the same time to ensure that while in their custody, ‘offenders’ are rehabilitated so as to prevent them from committing the same crimes again. While the latter is the clear focus of the White Paper on Corrections (2005), the Correctional Services Act (Act No 111 of 1998), which has sections of it currently under review for amendment, seems to pay more attention to retribution measures.

The White Paper on Corrections maintains a rehabilitative approach. It seeks to move away from a conservative view of looking at corrections by emphasising that ‘offenders’ should not be simply left behind bars, rather they should be given tools to change their lives. It argues that punishment will not prevent offenders from engaging in illegal activities once they have been released:

‘The White Paper represents the final fundamental break with a past archaic penal system and ushers in a start to our second decade of freedom where prisons become correctional centres of rehabilitation and offenders are given new hope…. will result in a second chance towards becoming the ideal South African citizen.’.

The Correctional Services Act however does not focus specifically on rehabilitation. While it is acknowledged as indicated in section 38 of the Act, and during the Ministry’s 2004/2005-budget vote, former DCS Minister Ngconde Balfour stated: “I am convinced that correction and rehabilitation is the only way in which we are going to insulate society against the cycle of crime. No high walls will do this,” the Act does not make rehabilitation a priority. Instead, according to section 36:

‘With due regard to the fact that the deprivation of liberty serves the purposes of punishment, the implementation of a sentence of imprisonment has the objective of enabling the sentenced prisoner to lead a socially responsible and crime-free life in the future’.

The Portfolio Committee acknowledged the differences in approach by the White Paper and the Act and as a result approved the amendment (Amendment Bill B32 of 2007) to the Act in May 2008. The proposed amendment is an attempt to merge the differing approaches in the White Paper and the Act by altering some of the vocabulary used when referring to those that have been incarcerated. Section 1 of the Amendment Bill, refers to prisons as correctional centres, for example.

Additionally, civil society groups and unions, such as the South African Prisoners Organization for Human Rights (SAPOHR) have called for better rehabilitation programmes and services in public prisons. Government, stakeholders and civil society therefore do not only acknowledge but also prefer the rehabilitative approach. Where then does the difficulty come in if there have been moves to merge the White Paper’s rehabilitative stance and the Act’s retributive tendencies? The difficulty lies in its implementation.

Public Correctional facilities still practice retribution. While the department has called for a rehabilitative approach, in practice this has proven difficult to implement mainly due to hindrances from society, DCS and the offender.

On a societal level, victims of crime tend to want to see their attackers incarcerated. In the National Crime Prevention Strategy (1996) it reads that ‘… the deficits in the criminal justice system undoubtedly contribute to a culture of impunity on the part of perpetrators and a sense of helplessness on the part of victims’. There’s a sense of ‘justice has been served’ by society when offenders are behind bars, whether or not they are rehabilitated or not. This is also exemplified by newspaper headlines (for the consumption of the public) such as Revoke ‘racist farmer’s bail’: community (The Star, 8 July 2009) and ‘You are lucky there is no more death penalty’ (Pretoria News, 3 July 2009). There is also a sense of relief that the perpetrator will no longer be around to harm anyone else. Even in cases where an offender is released, social re-integration measures by DCS are partly impeded by communities.

Without implying that positive initiatives such as the Victims Charter Survey should not exist, the focus on the victim also needs to be inclusive of the accused. While acts of ‘restorative justice’ assist in this regard, the high rate of recidivism, which was estimated at 94% in a Correctional Services Portfolio Committee meeting in 2008, indicates that the impact is not enough.

The DCS, while acknowledging the rehabilitative approach, is under- resourced in terms of classrooms for rehabilitation to take place, recreational facilities and specialist staff to keep the programme running. The Portfolio Committee expressed concern over the large amounts spent on other programmes in comparison to rehabilitation. Private prisons, on the other hand follow a rehabilitation approach. Although there is no comparing the facilities with public correctional centres, they are still the responsibility of the state. Financial resources have allowed rehabilitation programmes in the two private correctional centres to be beneficial. The DCS would therefore need to re-align their budget priority, geared towards rehabilitation.

Implementation in some instances may prove to be useless in cases where the offender is unable to be rehabilitated. These are mostly repeat violent offenders who may need to be continuously monitored in a correctional facility. Harsh life sentences are usually given to them on the basis that they are a danger to society. This was the recent case (10 July 2009) with an alleged serial rapist, Tsediso Letsoenya, who received five life sentences.

The consolidation of the rehabilitative approach is therefore difficult, as the department has to ensure that while offenders are kept in their custody, they ‘learn’ something from ‘doing time’. The balance, ensuring that justice is served and at the same time offenders are rehabilitated, needs to be maintained partly through changing societal perceptions of how government should react to those who disobey the law, involving more social workers and psychologists in social re-integration and rehabilitative measures. This would inevitably require, as proposed by the Portfolio Committee, a re-alignment of the budget in light of policy stipulations in the Amendment Bill (B32 of 2007), still under review, and White Paper on Corrections (2005).

*In the Civil Society Prison Reform Initiative newsletter, it is noted that some civil society groups consider the term ‘offender’ as a setback for the attempt by the Department of Correctional Services to rehabilitate and change prisoners.

Tizina Ramagaga, Junior Researcher, Crime, Justice and Politics Programme, ISS Tshwane (Pretoria)