Management of Remand Detainees in South Africa - DCS-Home

9.4 Challenges and Recommendations for Legal Framework
In broad terms, the existing legislation on the management of remand detention continues to be
relevant and rational. That is the situation in respect of the vast body of existing law. As examples,
the law is clear on how remand detention comes into being; what the rationale for it is; the rights
and obligations of remand detainees; and how and when remand detention comes to an end.
However, there are several provisions of the law that require serious consideration with a view to
improving it.
9.4.1 Torture, cruel, inhuman and degrading treatment
The Constitution of the Republic, Act 108 of 1996 in section 12 (1) (d) and (e) provides that
„everyone has the right to freedom and security of the person which includes the right not to be
tortured in any way and not to be treated or punished in a cruel, inhuman and degrading way‟.
While the above is clear and simple, on the surface, it may still require further clarity when read
within the context of managing remand detention. This should be done in order, principally, to
empower remand detention officials.
What is the reasonable time that a person should spend in remand detention? There is no
legislative injunction on what period of time may be considered unreasonable for any person to
spend in remand detention. This appears to be the case elsewhere in the world.
Might it not be prudent to limit the period of time that any person may lawfully spend in remand
detention, without undermining the administration of justice! In such an approach, the release of
any person from remand detention should still be the responsibility of the courts and the
investigating officer and prosecutor would have to still persuade the court to authorise further
detention.
But it should not be possible for any person to spend an inordinate period of time in remand
detention. The current situation, in rare cases where people have spent 7 years in remand
detention, actually, and by default, allows remand detention to be employed as a punishment tool.
9.4.2 Definitions on scope to be covered by remand detention
The various laws – Criminal procedure Act, No 51 of 1977 as amended, the Correctional Services
Act, No 118 of 1998, the Extradition Act, No 67 of 1962 as amended, the Mental Health Act, No 17
of 2002 – generally refer to people in remand detention as inmates, unsentenced offenders,
prisoners, and persons. The obvious bias, save for the Extradition Act provisions, is towards the
administration of justice which involves the trial of an accused person.
For obvious reasons, the Extradition Act refers to persons being enquired into for purposes of
determining whether or not they should be surrendered to a foreign and requesting jurisdiction.
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