JICS Quarterly performances

Meeting report

The Chairperson opened the meeting by welcoming Justice Edwin Cameron and his team from the Judicial Inspection for Correctional Services (JICS). The presentation would be on the annual report of 2019/20 and the first quarter of 2020/21.

JICS quarterly performance

Overview by Justice Cameron

Justice Edwin Cameron, Inspecting Judge: JICS, expressed appreciation for the opportunity for rigorous scrutiny. He began by acknowledging that it had been rough year for the country at large –for public leadership, for prisoners living with the fear of contagion, for correctional personnel employed to guard prisoners, as well as for JICS and its staff. JICS had initially been excluded from the exempted personnel under the emergency regulations. After taking this up with the Minister and Deputy Minister, this had been corrected and within a few months, JICS had been able to resume its visits.

Challenges

The concerns faced were familiar, including overcrowding. In acknowledged the reservations expressed by some Members of the Committee about the Presidential interventions, he added that it was his view that both the intervention in December 2019 in terms of remissions, and the bringing forward of parole dates on 8 May 2020, were welcome. He welcomed the Committee’s reservations, questions and challenges about this, however.

Although JICS had misgivings about the capacity of the correctional system to deal with COVID-19, its worst nightmares were not fulfilled. It did not have the completely catastrophic effect that JICS feared. It had expected mass outbreaks in every prison -- not unreasonably, as that was what had happened in some areas in the Philippines, and in North and South America.

The mandatory reporting by the correctional personnel structures to JICS on isolation, mechanical restraints, death and the use of force as required by statute, had declined in frequency due to systemic issues. At the same time, there had been indications of increasing violence. He would be failing in his duty if he did not bring to the Committee’s attention the incidents in Durban-Westville, and the continuing incidents in St Albans and elsewhere, which would be expanded on. JICS was of the opinion that some of these incidents of violence would be manageable, should the system be corrected. For example, the chronic dysfunction in prison infrastructure should be remedied if the Department of Public Works was responsive. Another was concern was the provision of rehabilitation on educational opportunities.

JICS’ independence and the Constitutional Court case

JICS would also be briefing the Committee on its independence, as it was now part of the internationally regulated Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) under the Human Rights Commission (HRC). It was an independently functioning part of the OPCAT national preventative mechanism. JICS had a business case to argue for its autonomy within the civil service, regardless of any legislation or Constitutional Court outcome.

JICS also had a draft Bill which it would be submitting for the Committee’s scrutiny and oversight. JICS had gone to the Constitutional Court on 2 March 2020, and it was now seven months later and it still did not have a judgment. The judgment sought was to confirm the order of the High Court which had struck down certain provisions of the Correctional Services Act because they were insufficiently protective of JICS’s independence.

JICS and the Executive

JICS had a good relationship with the executive. His impression was that the Deputy Minister of Justice and Correctional Services, Mr Nkosi Holomisa, had a real interest in making an impact on his portfolio, and a number of meetings had been held on parole, as a well-functioning parole system was important to the public. There had been some instances this year which were deplorable, to which some Committee Members took great issue, regarding the way in which recurrent criminals were released on parole, and rightly so. On the other hand, when earned, to appropriate inmates parole was a vital portion of the functioning of the correctional system as without parole, none of them had any hope. JICS was hopeful that its work with the Deputy Minister would enable him to get his Department and the system to function better. A meeting had been held with the Deputy Minister where experienced parole board members had set out a number of the problems, including their terms of service and employment. JICS was pushing the Deputy Minister to fix these and get the parole board and parole board oversight working.

Justice Cameron concluded by saying he welcomed further scrutiny, and asked Mr Vickash Misser, Chief Executive Officer at JICS, to provide the main presentation. Both he and Mr Misser noted the loss of Mr Umesh Raga who had passed away, saying he would be missed within the JICS family.

JICS quarterly performance

Mr Misser said that of the 37 inspections scheduled in the fourth quarter, five were not conducted due to the national lockdown, and in the first quarter, of the 36 scheduled, only seven were conducted due to COVID-19 restrictions on visits to correctional centres. The five locations which were not inspected were listed on page nine of a report JICS referenced as having been given to the Committee. Whilst the lockdown was in place, it had been active in ensuring that a catch-up plan was put in place so that inspections that had not been conducted, would be.

Mr Misser provided the meeting with statistics on investigations; complaints; mandatory reports on unnatural deaths, natural deaths, segregations, mechanical restraints and the use of force; and the visitors’ committee (VC). JICS had been obliged to suspend VC meetings in correctional centres due to the lockdown.

The issue of declared state patients’ needed a lot of attention in order to be resolved, and had been considered repeatedly in VC meetings. They were dangerous to themselves, to officials and to other inmates. JICS suggested that the Committee on Health may need to be engaged to get these patients out of places of incarceration.

Attempts had been made by immigration officials to remove non-nationals from incarceration centres during the COVID-19 period.

During the first quarter, there had been 246 Covid cases. This translated to approximately one infected person per centre as of 6 October.

As at 31 March, 82 posts had been filled, with four posts vacant. In this quarter, there were currently 21 vacancies, and JICS was busy trying to fill them. Mr Michael Masondo had been transferred from JICS to the Department of Justice as from 1 June. Recruitment was currently under way.

During the fourth quarter, JICS had under-spent its budget by 13.06% on Standard Chart of Accounts (SCOA) items: compensation of employees (CoE).

Giving a summary of current property management, Mr Misser said JICS was grateful to the Minister and the Director General (DG) of the Department of Justice and Constitutional Development (DOJ&CD) for allowing JICS to occupy office space within the East London Magistrates’ Court, pending the finalisation for securing a permanent home in the Eastern Cape.

Communications and media strategy were covered more fully on page 41 of the report to the Committee. He said that communicating with staff during quarter four and quarter one remotely had been a big challenge, but it had managed to innovate through the use of WhatsApp platforms, video packaging and news flashes during the lockdown period. It was still facing challenges with its website, although progress was being made. JICS would present further on the website at the next meeting.

Discussion

The Chairperson expressed the Committee’s condolences and prayers to the Raga family, as well as the JICS organisation, commenting that it could be difficult to lose someone after having worked with them for over 20 years.

Mr W Horn (DA) said it had been stated that no critical interventions were identified during inspections undertaken as part of the national inspection plan in the two quarters reported on. He asked for clarity on what constituted a critical and non-critical intervention, and for the Committee to be appraised of a typical type of non-critical intervention which would be identified during inspections. He asked whether, in the period after the regulations had been amended to allow for independent visitors, measures had been put in place for a bigger presence to deal with matters which could not be dealt with during the time that independent correctional centre visitors (ICCVs) were precluded from visiting. He also asked how many inspections had been conducted on notice, and how many were conducted without notice. 

Ms J Mofokeng (ANC) asked about the entity’s property management. Considering the fact that the Eastern Cape Magistrate Court had accommodated JICS, she asked whether this could not be done in other provinces, as the amounts spent on leases was high. Medication overdose was termed amongst unusual deaths, and she asked if this was not suicide -- and if so, why was it termed as such? How much additional funding had been requested for information communication technology (ICT) services, and how much had been received?

Mr J Selfe (DA) asked whether the document on parole could be shared with the Committee. On mandatory statutory reports, the Inspecting Judge had mentioned increasing violence and issues in the reporting system which had been mentioned before. However, the reports handed in by the Department of Correctional Services presented very low numbers on unusual deaths and violence. Justice Cameron had reported systemic problems in the reporting system before, and relating the reports on increasing violence, as compared to the complaints received by JICS nationally and by the reports from the ICCVs, pitiful statistics on violence were being reported. These numbers could not possibly be accurate, so he wondered how reliable and credible the reports given to JICS were. Despite the fact that the lockdown happened only towards the end of March, the visitors’ committee meetings were significantly reduced. He asked what the reason for this was.

Mr X Nqola (ANC) asked about the reported understanding on the compensation of employees and the vacancies which had not been filled at JICS. He asked why vacancies had not been filled, whether the reasons were COVID-19 related, and what the recovery plan was.  He said there had been two reported cases of misconduct and fraud involving ICCVs who may have smuggled in contraband. The report was not clear as to what happened. He asked for more detail. He agreed that Ms Mofokeng on property management, as he was of the view that the continuous leasing of property had proven to be costly. Finally, there had been a continuous complaint about DCS personnel not providing proper reports or submitting them on time. He asked whether there had been an improvement in this regard.

Mr S Swart (ACDP) also sent his condolences on the passing of Mr Raga, and recalled him fondly. On the JICS judgment delay, he commented that according to norms and standards, judgments should be delivered within six months unless there were good reasons for a delay, and it had already been seven months. He felt this needed to be followed up by the Committee when it engaged with the Chief Justice, as it was a very important judgement which needed to be read with the draft bill, which he agreed would need to be seen by Parliament who would ultimately pass the Bill, although it would go through Cabinet.

He expressed concern over the figure relating to ‘natural causes: other.’ He asked whether the figures were due to sicknesses or murders, and whether JICS satisfied that ‘natural death: other’ did not constitute deaths requiring further investigation. What steps were being taken to avoid re-offending by parolees who had been released per the Presidential dispensation in particular? He asked whether JICS knew of any re-offences by inmates who had been released on parole in this particular group.

He asked for the reasons for the increase in violence in quarter four and quarter one. A report had been promised and the explanation given was that the violence was mostly in defence of another person. He made reference to Mangaung, but said that perhaps they could wait for a full report on that issue. Finally, he asked for updated figures on the COVID-19 related deaths. These deaths were very sad, and he indicated his condolences.

Ms Y Yako (EFF) asked if there was no way that the Committee could compel the Department of Public Works and Infrastructure (DPWI) to do what it needed to do on the infrastructure of prisons. She was worried about the unnatural deaths reported, and whether the Department had security measures to deal with corruption within the system itself to ensure that prisoners were unable to access contraband materials. It should not be the case that prisoners were able to kill themselves via hanging, or stab themselves, and this was a concern for her.

Ms W Newhoudt-Druchen (ANC) added her condolences to the deceased and to their families. There had been two additional slides shown which were not in the original presentation sent to the Committee. She asked that they be sent, as they related to the COVID-19 figures. Referring to Judge Cameron’s introductory remarks, she asked for him to elaborate on what he meant by a lack of access to educational opportunities. Regarding matriculants, she asked whether the matric inmates would also be able to write their exams this year.

The Committee did not often receive briefings about assaults by officials on inmates and she asked whether there were such officials and if there were, whether disciplinary processes were conducted against those employees. She asked how suicide could take place, presumably with witnesses. On the figure on use of mechanical restraints and segregation, she asked whether these figures were average, normal or unusually high, with substantiation. She observed that employment equity figures regarding disability were incredibly low, and encouraged JICS to look into employing people with disabilities, and particularly women with disabilities, as there were none of them among the employees.

Ms N Maseko-Jele (ANC) asked whether the use of the term ‘non-nationals’ meant non-South Africans, meaning that foreigners were populating its prisons. She wanted to know if there were more foreigners in jail than South Africans.

JICS responses

Accommodation

Mr Misser said that this matter was being dealt with. When JICS had approached the DPWI, it had been informed that available public properties were derelict and that they would require a lot of work before they could be functional.

Parole and re-arrests

JICS needed to get these statistics from the DCS, analyse them, and then report back to the Committee once it had them.

Declared State Patients

Once patients were declared, they could not be incarcerated anymore and had to be removed to institutions where they could be medicated and get better.

Report on increasing violence

The report was public and would be made available to the Committee. A hotspot had been identified, and inspectors Mr Lennard De Souza, Manager: Inspections/investigations Unit - Legal Services, JICS, and Ms Thembi Nhlanzi-Ngema: Directorate, Legal Services, had been sent to Mangaung on 12 and 13 August to have a joint discussion with the Regional Commissioner of the Free State. A discussion had been held on the thematic report on the use of violence. The report on this was nearly finalised and would be released soon for all to consider the findings.

Mandatory statutory reporting

The management and information system of the DCS had not been functioning since 2016. This had meant that heads of 243 centres could not put daily information on to the system which JICS had access to. From February 2018, JICS had approached the National Commissioner to issue a manual directive to all the heads of centres in order that they report manually to JICS so that it could get the information it needed, specifically on the big four areas: segregations, use of force, mechanical restraints, and deaths.  However, JICS hoped that with the new E-correctional system, this would change.

Diminished Visitors’ Committee (VC) meetings

Due to the non-presence of some ICCVs, and regional managers who chaired these meetings also being engaged in other commitments such as investigations, VC meetings could not be held. JICS, however, was committed to having a catch-up plan regarding these meetings.

Under-spending and vacancies

This was a recurring issue. The main reason for the vacancies was the re-engineered system of the ICCVs. Migration from the old system was the main reason for the under-spending. There were four positions, including two director positions, which had been vacant for a long period of time.

Misconduct

Some cigarettes had been smuggled in by an ICCV during the lockdown. The disciplinary matter was being attended to.

Relationship between JICS and the DCS on proper reporting

The relationship between JICS and the DCS had been enhanced. Its relationship with the National Commissioner and with the Deputy Minister, supported by the Minister, was also good. Since the Inspecting Judge President took office on 1 January, there had been no challenges. Although there were some differences, these were professional differences. This would be reflected in the JICS’s reports.

Constitutional Court case and the draft Bill

JICS was waiting expectantly for the judgment. However, it was already working on its draft Bill, which was being perfected whilst waiting for the Constitutional Court’s decision, so that once it was given, JICS could dot the “i’s” and cross the “t’s” and present the Bill to the Committee at that point.

Unnatural deaths

The discrepancies between the DCS and JICS reports depended on the classification. The DCS waited for autopsy reports before it classified whether a death was unnatural or natural -- caused by a heart attack, for example.  JICS does not classify in this way. If at the time of death, the cause could not be certified, it was classified as unnatural until it received the post-mortem autopsy report, at which point JICS deals with it accordingly.  All deaths were investigated by JICS.

Parole update and re-offending paroles

An update would be given, but the DCS would be in a better position to provide the statistics on re-offending inmates.

Infrastructure report on facilities and overcrowding

JICS was in possession of an infrastructure report. The Inspecting Judge was analysing it and would announce the findings in due course.

Corruption within the system

JICS did not have the capacity in its business case to conduct investigations, but it had expanded its business case in order to deal with this and to build capacity by synergising its work relationship with the Special Investigating Unit (SIU), the National Prosecuting Authority (NPA) and with the South African Police Service (SAPS).

Missing slides

The missing slides were contained on page 31 of the annual report. However, it would resubmit the presentation

Employment equity: disabilities

Mr Misser said he would take this concern into account and review the JICS’s employment equity plan.

Foreigners in facilities

There were a lot what one would call foreigners among the 154 000 incarcerated inmates. The current statistics indicated that 16 000 of those incarcerated were foreigners.

Notice for inspection and critical interventions

Ms Thembi Nhlanzi-Ngema responded on whether they made appointments before making inspections. Notice was given, but it was a short notice, such as 24 or 48 hours. Critical interventions were needed where there was poor food or no blankets, for example. These identified issues were then flagged in a report given to the head of those centres to be corrected.

Medication overdose

Mr Lennard DeSouza confirmed that JICS investigated both cases of medication overdoses, and in both cases it had been found that they were in fact suicides.

Assaults by officials on inmates

There were many assaults, and during its investigations, it sometimes recommended disciplinary action. However, it was also monitoring to ensure that the DCS conducted the disciplinary action.

Witnesses of “natural deaths (other)”

Natural deaths (other) were determined where someone was terminally ill. “Unnatural deaths (other)” needed investigating. Often people committed suicide early in the morning when the others were asleep in the shower area, hence there were not often witnesses.

Could the judiciary compel the DPWI to do its work

This was a complicated question, as both JICS and the Committee would like to see the Department doing its work. Technically the courts could be approached to get a mandamus (judicial writ) to enforce this, as had occurred in the school books case, but it was a tricky situation.

The writing of matric

Justice Cameron asked if he could provide a response in writing. He also asked if the COVID response could be provided in writing.

Way forward

The Chairperson asked if there were any follow-up questions, and handed over to the chairperson of the sub-committee to give a way forward.

Mr Q Dyantyi (ANC) asked whether JICS had received any allegations that some inmates were used as hitmen. Without going into any details, he asked if JICS had addressed this before he continued to pave the way forward.

Justice Cameron said that the answer was “no.” JICS executives, Ms Ngema and Mr DeSouza had gone to take a statement from someone who claimed to have overheard arrangements for a hit, but the allegation that some inmates were used as hitmen had not been part of the claim.

The Chairperson asked Mr Dyantyi to allow one final statement before making his concluding remarks.

Adv G Breytenbach (DA) thanked JICS for attending speedily to two matters which she had reported. This had assisted her in reporting back to two families.

Mr Dyantyi said that a JICS recovery plan needed to be drawn up so that before they entered quarters two and three, there was a plan to deal with some of the issues. There were a number of unknown issues which needed to be properly clarified, because in an environment where the violence in incarceration centres was increasing, there needed to be a clearer understanding of the circumstances.

The outstanding JICS judgment needed to be a part of the longstanding discussion to be held with the Chief Justice. At the meeting held with JICS on 22 February, there had been enthusiasm from the CEO, and it seemed as if things would happen, yet it was now October without things having progressed. As a Committee the issue of the judgment would be raised.

On the sensitive issue of the transfer of prisoners to neighbouring states and other countries, at previous meetings the Deputy Minister had said a lot of work needed to be done in this area, as what was being provided by the DCS was better than being a prisoner in another country.

Regarding the question of whether there were too many foreigners in South African prisons, he reminded Ms Maseko-Jele that there were over 162 000 prisoners between remand and incarcerated prisoners. He added that there were thousands of South African prisoners in other countries such as Brazil and Hong Kong. He concluded by saying that these were the kinds of matters which he felt the sub-committee would be following up on.

The Chairperson said the Committee was glad that there was a good working relationship between the JICS and the DCS. He hoped this would continue until the Inspecting Justice’s term came to an end.

The meeting was adjourned.