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These essays give a multidimensional perspective on South Africa's democracy as it turns twenty, and will be of interest to general readers while being particularly useful to students and researchers.

A 1997 project established by the Vera Institute of Justice, a New York-based non-government organisation, aimed to alleviate overcrowding in South African prisons by assisting magistrates in bail proceedings and thereby decreasing the number of admissions into awaiting trial facilities. Understanding the context in which the project operated leads to the important observation that efforts to launch and sustain discrete experiments in justice innovation will necessarily come under strain when faced with aggressively adverse macro circumstances, like the ones that faced Vera’s pre-trial project. However, the legal and social milieu has changed over the last twelve years. It is perhaps time to once again explore how innovations in criminal justice administration (a much-needed initiative) might best work in the various criminal justice management areas, given the discrete circumstances of each.

A 1997 project established by the Vera Institute of Justice, a New York-based non-government organisation, aimed to alleviate overcrowding in South African prisons by assisting magistrates in bail proceedings and thereby decreasing the number of admissions into awaiting trial facilities. Understanding the context in which the project operated leads to the important observation that efforts to launch and sustain discrete experiments in justice innovation will necessarily come under strain when faced with aggressively adverse macro circumstances, like the ones that faced Vera's pre-trial project. However, the legal and social milieu has changed over the last twelve years. It is perhaps time to once again explore how innovations in criminal justice administration (a much-needed initiative) might best work in the various criminal justice management areas, given the discrete circumstances of each.

The death of Nelson Mandela on 5 December 2013 was in a sense a wake-up call for South Africans, and a time to reflect on what has been achieved since ‘those magnificent days in late April 1994’ (as the editors of this volume put it) ‘when South Africans of all colours voted for the first time in a democratic election’. In a time of recall and reflection it is important to take account, not only of the dramatic events that grip the headlines, but also of other signposts that indicate the shape and characteristics of a society. The New South African Review looks, every year, at some of these signposts, and the essays in this fourth volume of the series again examine and analyse a broad spectrum of issues affecting the country. They tackle topics as diverse as the state of organised labour; food retailing; electricity generation; access to information; civil courage; the school system; and – looking outside the country to its place in the world – South Africa’s relationships with north-east Asia, with Israel and with its neighbours in the southern African region. Taken together, these essays give a multidimensional perspective on South Africa’s democracy as it turns twenty, and will be of interest to general readers while being particularly useful to students and researchers.

‘Going to prison is like dying with your eyes open.’ Bernard Kerik, former New York City police commissionerINTRODUCTIONThis chapter is about a long-standing problem in the South African criminal justice sector that, despite an overhaul of the prison legislation after the enactment of the final Constitution, continues, twenty years on, to plague the Department of Correctional Services and, of course, those who are incarcerated in the country's prisons. I examine both the causes and the effects of overcrowding as well as the constitutional implications, and argue that currently the rights of inmates detained in overcrowded prisons are being infringed and that curative measures on the part of the state are needed urgently. I discuss what remedial measures are, or could be, available, some of which could be employed immediately, and others over the medium to long term.A FEW PRELIMINARY POINTSI use the term ‘inmates’ to refer to both sentenced offenders and those awaiting trial. The latter, to whom I shall refer as ‘remand detainees’, are detainees who have already been formally charged before a court, are awaiting trial, or who have not yet been sentenced and who are being detained in a prison. Approximately one-third of the prison population is composed of these remand detainees and they are thus a significant element in the problem of overcrowding (Judicial Inspectorate 2010/11). The term ‘overcrowding’ is used in this chapter as a description only of the ratio of inmates to rated capacity. Haney (2006) makes the important point that the term could include the extent to which a prison accommodates more inmates than its infrastructure can ‘humanely accommodate, meaning a prison without adequate medical facilities for its population could be “overcrowded” even though, technically, it is not accommodating more inmates than that for which it was designed’. Although it is likely that South African prisons are overcrowded in the broader sense, the statistical information available is not sophisticated enough to support an argument along such lines. So, in this chapter, we consider only the numbers of inmates.PRISON LAW AND THE CONSTITUTIONSince the advent of South African democracy the law in respect of prisons and punishment has been reformed in significant ways. Reform was prompted, of course, by the interim and then final Constitutions, the latter adopted in 1996.

We have a Bill of Rights that prohibits torture and cruel and inhuman punishment and requires that evidence collected in violation of this prohibition be rendered inadmissible; state oversight mechanisms such as the Judicial Inspectorate for Correctional Services and the Independent Complaints Directorate; the South African Human Rights Commission with its sub-committee on torture; and a vibrant and vigilant media and civil society ready to investigate and expose acts of state-sponsored brutality. The Abu Ghraib perpetrators are no more inherently good or evil than you or I. The same goes for the Zimbabwe security forces that, it has recently been revealed, have been running \"torture camps\" in the Marange diamond fields. In addition, UNCAT also requires member states to educate its officials on the absolute prohibition of torture, review regularly interrogation rules and methods, promptly investigate allegations of torture, protect witnesses and victims of torture and enable redress for victims of torture.