prison privatisation in south africa issues, challenges and ...

The enforcement of these performance standards will depend on the monitoring environment. If
the controller appointed by DCS becomes co-opted into the prison management structure and
total capture occurs then it is possible that none of the laudable standards in the contract will be
implemented. Many of the factors which lead to capture are present:
The controller who has been appointed for the BCC prison was hired from the DCS, as
was the director and his deputies.
The controller is given an office and a small support staff on the actual premises of the
BCC prison. This may seem like a good way to ensure consistent compliance, however, it
is also likely to lead to an informal and overly sympathetic relationship with BCC
management and staff.
The controller will be in daily contact with BCC and will become extremely sensitive to the
interests and operational challenges faced by the prison.
It remains to be seen, however, if the controller will place the interests of BCC management
above his duty to ensure appropriate contract compliance and performance.
The contract
The contract between BCC and the South African government has not been made accessible to
the public. The reasons given by government officials ranged from a claim that it was necessary
to protect the commercially sensitive nature of the contract to the need to protect security
information. One government official explained that it may become public information eventually
but that would be decided in a committee meeting which had not yet taken place. Lengthy
discussions and informal examination of Schedule D was permitted, but the remainder of the
contract has still been kept secret. The South African Constitution, Article 32 (1) guarantees
access to any information held by the state which is required for the protection of rights. The
Promotion of Access to Information Act was passed in 2000 in order to give effect to this
constitutional right. In the preamble, the Act recognises that:
"the system of government in South Africa before 27 April 1994, amongst others,
resulted in a secretive and unresponsive culture in public and private bodies which
often led to an abuse of power and human rights violations."5
The preamble concludes with a statement regarding the intentions of the Act, which includes a
desire to "foster a culture of transparency and accountability in public and private bodies."6 In
light of the constitutional rights of South African citizens and the intentions of the recently
passed Act, the contracts with private prison companies should be released to the public without
further delay.
Financing
The BCC contract is a lease-purchase arrangement, wherein the government pays rent for the
use of the facilities. Once all the payments are completed, title for the facility will be turned over
to the Department of Public Works. Most ‘design, construction, finance andmanagement’
(DCFM) projects involve a separate financing arrangement which extends for anywhere from 20
to 30 years. The management contract however is usually limited to five years. This is intended
to give the government the often praised ‘flexibility’ of having the option to change contractors or
discontinue private sector involvement entirely. However, this alleged benefit is entirely negated
by the presence of long-term financing arrangements which involve the government almost