DCS briefing: delays relating to offender profile & legislation on the independence of JICS

Meeting report

The Chairperson greeted Members of the Portfolio Committee, officials from the Department of Correctional Services (DCS) and the National Council for Correctional Services (NCCS), and other stakeholders in attendance on the platform.

The Committee Secretariat informed the Chairperson that apologies had been submitted by Minister Lamola and Deputy Minister Holomisa, as they both were unable to be in attendance.

Inspecting Judge’s opening remark

Judge Edwin Cameron, Inspecting Judge, informed the Committee that Members should be aware of the Sonke judgment handed down by the Constitutional Court on 4 December 2020. That constitutional order pointed out that there were unconstitutional defects in the Judicial Inspectorate for Correctional Services (JICS) statutory framework and a two-year period had been given to fix that problem. That period would expire on 3 December 2022.

Judge Cameron affirmed that both the JICS and the DCS had worked very hard to meet this deadline, particularly JICS -- Mr Jacques van Wyk, Acting National Commissioner, had even worked during the Easter period to fulfil this commitment.

He said the DCS, Minister Lamola and the JICS were unanimous that three parallel processes should proceed. Those three processes were the enactments necessary to the existing Correctional Services Act (CSA), the enacting of the JICS draft bill, and the JICS organisational form.

He affirmed that the JICS highly valued the Committee’s oversight role and emphasised ensuring inmates' safe and humane prison conditions. The Constitutional Court had found that prisons in the country were fertile breeding grounds for autocracy and human rights abuses, which were infringing upon the rights of inmates. It was the state’s responsibility to protect inmates. Providing humane conditions for inmates was not only in the interest of the inmates, but also in the interest of those that guarded them.

Judge Cameron said the JICS had developed a business case toward institutional autonomy. A fully represented and inclusive inter-departmental committee had soundly recommended JICS become a national government component. He assured that the JICS becoming an independent national component would not be a strain on the national fiscus. Any further funding for the JICS would come through a phased-in approach through the DCS’s under-spending.

He stated his objection to the suggestion of the JICS being merged into the South African Human Rights Commission (SAHRC), which he described as impracticable and retrogressive due to the fundamental difference between those two organisations and the JICS’s specialised knowledge.

Briefing by Judicial Inspectorate for Correctional Services (JICS)

Ms Thembelihle Ngema, Director: Legal Services, JICS, provided the Committee with the background of the JICS draft bill. The bill emanated from s35(2)(e) of the Bill of Rights, which prescribes the conditions for incarceration and detention, the Optional Protocol to the Convention against Torture (OPCAT)  and other cruel, inhuman or degrading treatment or punishment, and s85 of the Correctional Services Act, which establishes an independent JICS under the control of the inspecting judge (IJ).

On 5 September 2019, the Western Cape High Court declared sections 91, 88A(1)(b) and 88A(4) of the CSA constitutionally invalid insofar as failing to guarantee the JICS’s independence.

On 4 December 2020, the Constitutional Court confirmed the great substance of the High Court’s judgment. It underscored the importance of a properly functioning oversight body such as the JICS, and that independence -- structural, operational and perceived -- as an “inherent characteristic” of an oversight body. The Court had confirmed that sections 91 and 88A(1)(b) were constitutionally invalid and provided a constitutionally compliant interpretation of section 88A(4).

The declaration of invalidity was suspended for 24 months to allow Parliament to remedy the defects.

The amendments made to the JICS draft bill were outlined to Members.

(Details of the amendments can be referred to in the presentation.)

Mr J Engelbrecht (DA) proposed the next presenters make their presentation so that Members could have a more informed view of both entities before asking questions.

Members agreed with Mr Engelbrecht’s suggestion and permitted the Department of Correctional Services to proceed to make its presentation.

Briefing by Department of Correctional Services

Mr Jacques van Wyk, Acting National Commissioner, requested the Committee to note:

• the progress in implementing the Constitutional Court order in the matter of Sonke Gender Justice NPC v The President of the RSA and others (Sonke);
• the contents of the draft Correctional Services Act (CSA), the Amendment Bill and the draft Judicial Inspectorate for Correctional Services (JICS) Bill; and
• the CSA and the Amendment Bill will be introduced to Cabinet in June 2022.

Mr Van Wyk emphasised the invalidity of sections 88A(1)(b) and 91 of the CSA, which the Constitutional Court held. As a result, Parliament had been given 24 months to amend the Act.

The amended sections consisted of:

• S88(A) -- Appointment of the Chief Executive Officer;
• S99 -- Expenses of Judicial Inspectorate; and
• S95D -- Mandatory reporting to JICS.

Mr Van Wyk provided the Committee with an update on the progress made so far.

 

Discussion

Mr Engelbrecht asked the JICS how confident it was that this draft bill would prevent instances such as the failure of accounting officers to implement recommendations. He recalled a presentation in the Committee made by the Special Investigating Unit (SIU) highlighting this issue. If the preventative measures were not included in the draft bill, he asked the JICS whether they should be included.

Referring to the presentation from the DCS, he highlighted the importance of ensuring the independence of the JICS, which thus warranted that its financial accountability should not be made dependent on the DCS. He was happy with that recommendation, but did not believe it was a good idea that the accountability of the JICS should be to the Minister. He argued that it should be more appropriate for the legislative branch of government, which was Parliament, to assume that oversight role.

Mr X Nqola (ANC) agreed with the intervention methods and commended coherence between the JICS Bill and the Correctional Services Act.

Commenting on the plan of action which had just been presented, he said he could only get the information that the JICS Bill would be presented to the Cabinet by June. The Committee would need more concrete timelines that spanned the 24 months that the Constitutional Court had given. The Committee could more efficiently monitor the bill's progress by having those timelines.

He noted that both bills flagged and emphasised the obligation of the national officials of the DCS to hand over information to the JICS. The Committee also recalled a consistent problem, with the DCS being accused of failing to hand over the requested information to the JICS. He said that should national officials fail to hand over the requested information, and there must be consequences, which should be more explicitly stated in the bill.

Ms Y Yako (EFF) said that her colleagues partly covered her, but she wanted to know how the JICS bill would affect the budget of the DCS.

Mr W Horn (DA) agreed with Mr Engelbrecht’s view on the appropriate body that should execute the oversight role for the JICS. To ensure the institution's independence, his view was that institutions that were publicly funded should be held accountable to Parliament.

He agreed with Mr Nqola’s comment, and insisted that the Committee must be provided with a more concrete timeline. The legislature must avoid being accused of failing to meet a constitutional deadline.

Mr Horn referred to Chapter 3 of the JICS bill, which talks about replicating the regional structure of the DCS and its offices. He advised the Department to be careful on how to draft that provision, since the regional structure of the DCS did not fall within any legislative framework, but was rather an operational model which the Department needed to decide upon. He remarked that this operational model was not without its own challenges.

He highlighted that Chapter 11 of the JICS bill made reference to the Minister of Justice and suggested that it should reference the Minister of Correctional Services to be fully aligned to the bill.

He commented on the duties, powers and functions in the JICS bill, and said that the draft bill was very much a replication of the current model that focused on the conditions of individual inmates. He suggested that the bill should be drafted to address the systemic challenges of the DCS.

The proposed s88 repealed the provision on the National Commissioner appointing the CEO of the JICS, but he did not see any indication of an alternative process to that.

Mr Horn urged the DCS to ensure that it would not repeat the same mistake of the issues exposed by the current business funding model. He believed that the overhaul of this model was long overdue.

He was aware of the overhaul process of the Correctional Services Amendment Bill, and requested that all the amendments should be made in one amendment bill.

Mr S Swart (ACDP) raised concern about the tight schedule to meet the Constitutional deadline. He was aware that the issue had been raised at the highest level of Parliament, such as the Whips Forum and the Programme Committee. However, given that Parliament now had only five months to deal with the bill, which still had to pass through both Houses and be certified by State Law Advisors, he regretted to say that it would be unlikely that the bill would meet its constitutional deadline. Parliament would most likely have to approach the Constitutional Court to ask for an extension.

Ms W Newhoudt-Druchen (ANC) agreed with her colleague that there was little time for Parliament to meet the deadline. She asked the DCS what reasons, other than the financial factors, had caused the Department’s delay in bringing this bill before Parliament.

She was disappointed that she could not make more of a contribution, since Members had received the presentation documents only during the meeting.

She asked the NCCS and advisors to the Minister on policies about their views on independence of JICS. She disagreed with the proposed merger.

Adv G Breytenbach (DA) agreed with her colleagues on the need for urgency to deal with the issue. She objected to absorbing the JICS into the SAHRC.

Response

The Correctional Services Management (CSM) team responded to the Members' questions [individuals could not be identified as the team was present in one venue]

They confirmed that the CSM did have an action plan, with more detailed timelines provided, as Members had requested. They were still working on this action plan and would submit it to the Committee today. The plan would also undergo regular reviews as it was being implemented.

The Department confirmed that the fiscal implication resulting from the amendment, which would see the JICS become a DCS component, was a transfer payment. This transfer payment was a parliamentary process over which the Members of Parliament would have control and was administered by the National Treasury. Further, the CEO of JICS would be the accounting officer and report to the DCS.

The Chairperson interjected, and described the issue as a crisis, as time was not on the Members’ side. The presumptive timeline would be that the JICS bill presentation would be made to the Cabinet in June, and today was 3 June. There was no clear indication from the Department on exactly when the presentation would be made to Cabinet, and that gave the Committee only five months to deal with the bill.

The Chairperson also raised concern that nothing had been mentioned on how much time the Cabinet would need to review the bill. Normally, it takes the National Assembly two to three months to deal with a bill because of the whole public comment process. In the best scenario, the bill would be sent to the National Council of Provinces (NCOP) only in August. He was therefore really concerned, and requested a complete roadmap on the process of the bill before the meeting ended.

Mr Van Wyk provided the Committee with the context around the development of the JICS bill which had led to its delay.

The JICS bill, and its business case, had been created since 2019 -- before the Sonke judgment which the Constitutional Court delivered. At the time, all the parties involved in this process, including the executive, believed that the issues surrounding the JICS should be contained in a separate bill, and the relevant provisions in the Correctional Service Act be repealed. This was to conform to the Western Cape High Court's judgment, and was again confirmed by the Constitutional Court.

Mr Van Wyk highlighted that the process had been going on for quite some time. The Sonke case had begun as early as January 2017. The respondents in the case were the President, the Department of Correctional Services, the Department of Justice and Constitutional Development, the Minister of Finance, and the JICS. At the Presidency, the instruction was given going forward and as a result, the JICS bill was created. It was initially envisaged that by no later than August 2021, the JICS bill would be presented and introduced. However, the process involved securing the business funding model to confirm the JICS’s corporate identity. The corporate identity would then inform the content of the bill. It was later found that no finality had been obtained related to the business case of the JICS. A decision was then made to amend the Correctional Service Act to comply with the Sonke judgment.

Mr Van Wyk said that the Department would present a new action plan to comply with the Constitutional Court order. However, if it became impossible to comply with the deadline, an application for an extension would have to be made, citing the background reasons he had provided.

He said that the Department proposed that ss3 enhance the provision around the appointment of the CEO. He had heard Mr Horn’s point, which he believed was good, and guaranteed that the issue would be discussed intensively and urgently.

He agreed with Mr Horn’s view on the regional structure but changing that in the JICS bill would require amending the Correctional Service Act, which was not the primary focus.

The Department also agreed with Mr Horn's view that references in the draft bill should be made to the Minister of Correctional Services.

Mr Van Wyk said the Department was nearing completion of a document on the sections of the Correctional Services Act that needed to be reviewed and possibly amended with proposed amendments and justifications. This process had been going on for two years. The Department had extensively consulted relevant international and national research with ratified international instruments and incorporated issues such as gender-based violence (GBV) related crimes. He guaranteed that the Correctional Services Amendment bill would be presented to the Committee as soon as the JICS resolved its funding model and corporate identity issues. The current version of the Correctional Service Amendment Bill was just to comply with the Constitutional deadline. It was not being used to erase many other areas which the Department proposed to amend. It was envisaged that the discussion document would be finalised before the end of October, and the document would then be circulated.

He reassured the Committee that the Department always strived to cooperate and ensure timeous compliance. The current situation was a bit more complex than just amending certain sections that were found to be unconstitutional, because the current problem also hinged on the proposed business model which would define what the JICS was.

He explained that given the uncertainty over the JICS's funding model and the funding source, the Department could not amend s91 in any other way. It also had to meet the deadline given by the Constitutional Court.

The Chairperson noted the absence of Sonke Gender Justice in the Department’s consultation process.  

Judge Cameron responded that the Department was highly attentive to Sonke, because it had initiated the litigation. Unfortunately, Sonke no longer had a prison project. The Department worked very closely with all bodies in the non-governmental organisation (NGO) sector, and has established close links with them over the last few years.

He would not comment further on the delay, and why it had taken so long to be brought to the Committee.

He said the inter-departmental assessment team had finished working on the JICS bill long ago. The only roadblock which had arisen was from the then Finance Minister, Tito Mboweni, who had viewed the process with scepticism. However, he had to emphasise that many issues which Members mentioned earlier, such as appointment of the CEO, the non-implementation of recommendations, etc, were explicitly dealt with in the bill. He described the bill as a great step forward, and urged the Committee not to undo this process.

Mr Vick Misser, CEO, JICS, emphasised that the inter-departmental assessment had been completed, and the view was that JICS needed to be established as a national government component. It was currently short of R45 million in budget to achieve that.

He agreed with Mr Horn’s remark that Chapter 3 of the JICS bill was duplicating the regional structure of the DCS. The State Law Advisor had also expressed a similar view that the JICS should align its footprint provincially, and not overlap the regional structures of the DCS.

He assured Mr Horn that the Department was compiling a thematic report on inspections covering the issues of all interested parties in the correctional services environment.

He told the Committee that the roadmap could be submitted in due course.

He clarified that s36 of the PFMA did not specify that a person had to be a Director-General to be an accounting officer. The CEO could also be an accounting officer.

Mr G Magwanishe (ANC) suggested the Committee write to the Speaker and argue this case. He was very concerned that Parliament would suffer some serious reputational damage for failing to adhere to the Constitutional Court deadline. He emphasised that the Committee needed to strongly urge the President to intervene and bring both the Minister of Finance and the Minister of Justice together.

Mr Nqola agreed with his colleague’s view that he could not tolerate anyone tarnishing the reputation of Parliament. He found Mr Van Wyk’s suggestion to apply for an extension on the JICS bill utterly disappointing.  

The CSM team reiterated that the JICS financial matter was the only impediment that was delaying the process and apologised for dragging Parliament into a matter that could potentially tarnish its reputation.

The Chairperson indicated that he would expect an action plan before Friday next week.

NCCS on delays relating to offender profiles

Judge Brian Mashile, chairperson of NCCS, and Mr Mbilini Twala jointly made the presentation. They outlined the structure, functions and duties of the National Council for Correctional Services (NCCS) to the Committee.

They said the Council's backlog was mainly due to the North Gauteng High Court judgment dated 15 July 2011, and the judgment of the Constitutional Court dated 3 May 2019.

On 15 July 2011, the North Gauteng High Court had made a ruling on offenders sentenced to life imprisonment before 1 October 2004. The court ruled that the date on which they may be considered for parole be advanced by credits earned in terms of section 22A of the Correctional Services Act, 1959. They became eligible for consideration for parole after serving 13 years four months, instead of 20 years. Over 4 300 offenders had benefited from this judgment.

On 3 May 2019, the Constitutional Court handed down a judgment which confirmed and varied the order of invalidity of sections 136(1) and 73(6)(b)(iv) of Act 111 of 1998, in that these sections were declared inconsistent with sections 9(1) and (3), as well 35(3)(n), of the Constitution. The Constitutional Court had ordered that Parliament must, within 24 months from the date of the order, amend section 136(1) of Act 111 of 1998, to apply parole regimes based on date of the commission of an offence. Over 1 600 offenders had benefited from this judgment.

The NCCS’s action plan to deal with the "lifer" backlog was provided to the Committee. These actions included capacitation of the NCCS, increasing the number of NCCS meetings, and outreach by the NCCS.

The NCCS currently faces a number of challenges, such as a shortage of professionals such as criminologists, psychologists, the poor quality of profile reports, and delays in finalising profile reports.

Discussion

Ms Newhoudt-Druchen asked about the members that constituted the NCCS. She asked it to indicate which government official, whether the Minister of Police or the NCCS, was responsible for the appointment of those council members.

She found it strange that no parole board member was currently serving on the council. She therefore wanted to know how often the council met with the parole board.

She highlighted the importance of interacting with victims of crime. In her constituency, she received complaints that victims had never been informed, or communicated to, before offenders were released on parole. She asked the NCCS whether it ever interacted with victims of crimes before a parole decision was made.

She commented that no one on the council was from the Department of Social Development. She asked the NCCS to indicate how long that post had been vacant. She believed that had a member from the Department of Social Development been on the council, and it would have resulted in more efficient and effective psychological counselling, which would have been more beneficial for victims.

She asked the NCCS to give a more accurate figure on the actual number of meetings it held in a month. She also wanted to know whether departmental officials produced reports of poor quality, as indicated in the presentation slides.

NCCS's response

Judge Mashile said that the Minister of Correctional Services appointed all members of the NCCS.

He clarified that the NCCS did not meet with the parole board, but rather relied on the recommendations made by the parole board to consider and make final recommendations on the parolees to the Minister.

He assured Members of the Committee that the system at the DCS was inherently built to accommodate victims. Ideally, before parole was granted, a victim should be made aware that the parolee was about to be released. If a victim had no issue with meeting with the offender, a meeting between them would be arranged, at which the offender would ask for the victim’s forgiveness. However, a written representation could also be made if the victim did not wish to meet with the offender. It should not happen that victims were not aware of offenders being released on parole.

Judge Mashile said that the council position for the member from the Department of Social Development had been vacant for about a year or two. During the 2019/2020 financial year, there had been someone, but that person was recalled and had never been replaced.

Ordinarily, meetings of the NCCS took place once a month, and usually lasted for three days. However, there were also special occasions to address backlogs, where those meetings would take a week -- from Monday to Friday.

He confirmed that the NCCS did involve social workers and psychologists to conduct risk-assessment reports for their parolees. The decisions made by the NCCS were based on those reports.

Ms Lusanda Rataemane, NCCS, added to Judge Mashile’s comment, saying that the NCCS faced a challenge where social workers and psychologists just copied and pasted from previous reports, which had become a prevalent practice. Since there was no process for the NCCS to meet with offenders, and it relied solely on the reports provided by those psychologists and social workers, it became increasingly difficult for the NCCS to recommend parolees with confidence, given the inaccuracy of those reports. Also, some of those reports did not contain a risk assessment section or provide a specific risk level.

Dr Hema Hargovan, NCCS, said the NCCS was very much aware of restorative justice and voluntary participation for victims. The Victim-Offender Dialogue (VOD) process started in 2012 and was being efficiently run in most centres. The one challenge that the NCCS faced was that victims could not be located in many instances. She confirmed that when victims did choose to participate in the VOD process, it was facilitated by centres through the Correctional Supervision and Parole Board (CSPB) and Case Management Committee (CMC). Making written representation was also given to victims as an option.

Mr Nqola raised concern over the offender profiling issue. He had recently been to the Mdantsane Correctional Centre, where it was reported that thousands of parolees had absconded without having been traced. The Department had failed to trace them and bring them back to incarceration. He thus wanted to know to what extent the NCCS could assist in situations like those.

Ms Amanda Vilakazi from the NCCS responded that she was unaware of the situation, especially as parolees were over one thousand.

Mr Nqola said that his question on the Mdantsane issue was just an example. He wanted to understand how the NCCS could assist in situations such as lifers being placed on parole but later absconding, and the Department could not even trace that lifer.

The Chairperson wanted confirmation from the NCCS that no lifer in the country had absconded.

Judge Mashile confirmed that there had not been a lifer who had absconded. In terms of procedure, if someone who was out on parole absconded and recommitted crimes, that person’s parole would be revoked.

Dr Menzi Mkhathini informed the Committee that the NCCS had not tackled the issue of absconding because there were departmental procedure processes that specifically addressed the issue. However, he could confirm that the NCCS had revoked paroles for people considering recommitting crimes. He also highlighted the role that social integration programmes could play in putting those who had absconded back into the system.

Ms N Maseko-Jele (ANC) asked the NCCS how it got issues clarified, since it did not hold regular meetings with the parole board. Furthermore, she asked the NCCS whether it would consider meeting with the parole board before making recommendations to the Minister on the parolees.

Judge Mashile responded that the NCCS met the parole board through the parole board's reports. The parole board considered the reports of social workers and psychologists through the correctional supervision and parole board (CSPB) and Case Management Committee (CMC). He further explained to Members that the only inmate profiles from the parole board to the NCCS were lifers.

Ms Rataemane stressed that the NCCS did not meet with the parole board to ensure the objectivity of its own deliberations and recommendations.

The meeting was adjourned.