Workshop on Mandatory Minimum Sentencing

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Justice and Correctional Services

11 November 2022
Chairperson: Adv G Breytenbach (DA)
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Meeting Summary

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On a virtual platform, the Portfolio Committee on Justice and Correctional Services held a workshop with the Judicial Inspectorate for Correctional Services on mandatory minimum sentencing and other problems in the incarceration system.

For the Inspectorate, Inspecting Judge Justice Edwin Cameron recalled the reasons that a policy of mandatory minimum sentencing had been introduced in the 1990s, but pointed out that there was now overwhelming evidence that it was not long sentences but rather the certainty of punishment that deterred crime.  Similarly, there was no evidence that the practice of solitary confinement improved inmate behaviour and it should be abolished. The critical overcrowding in the prison system must be addressed. Approximately one third of the prison population were remand detainees. This number could be reduced through bail reform. Further reductions could be achieved through decriminalisation of petty drug offences and sex work. Justice Cameron also spoke about the unjust incarceration of non-nationals who had served their sentences, gross violations by prison officials, and conditions for female inmates.

The Committee greatly appreciated the presentation. Members called for broader engagement with the issues raised, not only among government departments but among society more broadly. They discussed the handling of drug-related crime, the practicalities of a bail fund and the nature of bail generally, the need for courts to be more disciplined when granting postponements, the future of correctional centres run as public-private partnerships, the lack of respect for the criminal justice system among the public and among its different elements, and the treatment of mentally ill offenders. The Committee tentatively decided to hold a broader workshop on the same issues early in 2023.

Meeting report

Opening remarks

Mr G Magwanishe (ANC) said that Adv G Breytenbach (DA) would be the Chairperson for the workshop.

Ms N Maseko-Jele (ANC) observed that in his opening remarks in one of the documents Justice Cameron had arguably made use of name-calling. Although she was sure that there had been no bad intentions, it was important that the workshop not become a platform for political campaigning. The Justice should be careful not to smear any views. The workshop should focus on the historical origin of the problems under discussion and look for solutions.

Justice Edwin Cameron, Inspecting Judge, Judicial Inspectorate for Correctional Service (JICS) apologised to Ms Maseko-Jele. He asked that his paragraphs 9-11 be treated as pro non scripto.

The Chairperson noted the apology. The Committee understood why these paragraphs were inserted and accepted the request.

JICS presentation

Mr Vick Misser, Chief Executive Officer (CEO), JICS, reported that Minister of Justice and Correctional Services Mr Ronald Lamola had approached the Constitutional Court (CC) seeking an extension of the Sonke deadline. The Minister had asked the CC to extend the period of suspension of the declaration of constitutional invalidity of sections 88A(1)(b) and 91 of the Correctional Services Act until 2 December 2023. JICS had filed an affidavit in support of the Minister’s application, Sonke Gender Justice had filed a notice to abide by the Court’s decision, the Speaker of Parliament had filed an affidavit supporting the extension, but the Minister of Finance had not yet filed any papers.

Ms Thembi Nhlanzi-Ngema, Director: Legal Services, JICS confirmed that National Treasury had not filed any papers in the CC. 

Mandatory minimum sentences

Justice Cameron recalled that mandatory minimum sentences had arisen out of fears surrounding the perceived rise in violent crime post-1994. This had been a mistake. It was the certainty of consequences rather than long sentences that deterred crime. Violent crime had in fact come down consistently from 1994 until 2011 but 2011 had been a disastrous turning point. The priority now should be rebuilding crime intelligence, detective services, and justice processes, not pointless, harmful, and expensive prison sentences. Every crime, especially violent crime and corruption, should be consistently, predictably, and justly visited with consequence. JICS called for the scrapping of all mandatory minimum sentences, sex work crimes, and petty offences targeting the poor, the replacement of drug-related offences with strict substance regulation and public health interventions, and the establishment of the Sentencing Council as recommended by the South African Law Reform Commission (SALRC) in 2000.

Solidarity confinement

Justice Cameron said that extended solitary confinement was being enforced at Ebongweni Super-Max and Kgosi Mampuru II C-Max prisons. It was against the prisoners’ constitutional right to dignity and there was no evidence at all that it improved inmate behaviour. JICS was concerned for the well-being of both inmates and officials. It recommended that solitary confinement be banned. Instead, access to rehabilitation and education programmes, exercise, visits, books, media and natural light should be increased, and phase two and three inmates should be allowed to eat their meals outside their cells.

Non-nationals, remand detainees, and overcrowding

Justice Cameron reported that there were non-nationals still in the prison system despite having served their sentences due to inefficiencies within the Department of Home Affairs (DHA). Remand detainees made up one-third of the country’s prison population of 150 000, far above continental trends. The prison system was approximately 40 000 over capacity. More than 2000 remand detainees were in custody because they couldn’t afford bail of less than R1000. These people were prisoners of poverty. JICS called for various reforms to address these problems, such as making accused persons liable for bail only if they failed to appear in court.

Gross violations by departmental officials and

Justice Cameron said that there were well-known violations by officials of the Department of Correctional Services (DCS), such as dogs being set on inmates. Incidents were swept under the carpet and the officials responsible were rarely held accountable. JICS called for greater co-operation between DCS and the South African Police Services (SAPS) and timeous enactment of the JICS Bill.

Mr Misser reported that the JICS report on its investigation into the treatment of detainees in Phoenix following the 2021 unrest in Kwazulu-Natal had been completed. It was awaiting feedback from the National Commissioner of Correctional Services before finalising the report. JICS was facing pressure from families and an application in terms of the Protection of Access to Information Act (PAIA) to release the report.

Incarcerated women

Justice Cameron said that although the proportion of women in the prison population was comparatively low, many had been incarcerated for minor addiction-related offences, sex work offences, and crimes related to care-taking and motherhood. A significant proportion were also incarcerated for retaliating against abusers. They suffered gender-specific challenges in addition to those faced by male prisoners. JICS called for the decriminalisation of drug use and sex work and the implementation of the National Strategic Action Plan on Gender-based Violence and Femicide.

(See presentation)

Discussion

Mr Magwanishe said that the presentation had been very educational, especially the data on violent crime coming down between 1994 and 2011 and then rising again. One reason for the rise could be that the state had not invested properly in modern technology. The crime and justice cluster must invest seriously in information technology for crime intelligence. This would create the certainty that perpetrators would be arrested and prosecuted. He criticised National Treasury for seemingly ignoring the Constitutional Court deadline in the Sonke Gender Justice case. This kind of attitude undermined South Africa’s constitutional democracy. It was expected that organs of state would respect the supremacy of the Constitution. Not knowing the response of National Treasury is highly problematic. This was something that could have been discussed in the last two years but now money had to be wasted to go to court. The discussion about prison conditions should not end here with the workshop. Rather, it must be made to engage the whole of society. There were members of the general public who believed prisons were five-star hotels, which was not the case. There were still people who felt that long sentences were the answer. There had to be engagement with society as a whole about the need for a shift in the mind set about prisons.

Ms Maseko-Jele suggested that there should be a bigger workshop where issues could be discussed holistically with the Committee, DCS and JICS, and solutions could be found. The situation in South Africa was indeed bad. South Africa should learn from other countries and not rush to legislate heavily. This issues should be addressed in a manner that would be long-lasting. There were issues that should be looked at before establishing the Sentencing Council. The Committee first had to ensure that JICS became independent and great care needed to be taken to appoint the right people.

Mr J Engelbrecht (DA) said that the origin of most of the problems JICS had raised was the DCS. The correctional facilities received inmates by the truckload and it was never-ending. The Krugersdorp Correctional Facility, for example, stood at close to 200% occupancy rate. The overcrowding was horrible. To add to this, SAPS also detained undocumented immigrants. The correctional services officials could not turn them away, even if there was no space. There had to be an investigation into the entire criminal justice system. A multi-departmental approach must be taken, through which the Department of Justice, SAPS and the DHA must look at the issues from a much broader perspective. If the issues were only looked at from the point of view of DCS then the problems could not be dealt with holistically.

Dr W Newhoudt-Druchen (ANC) said that perhaps JICS had brought the issues to the wrong people. The conviction rate for murder and rape was only around 10%. She suggested that there be engagements with members of the general public such as the family members of murder and rape victims. People had the mindset that the longer the sentence, the more it fitted the crime. The gap between incarceration and conviction was something that has to be evaluated. What happened in this period? She agreed that the subject matter of the workshop should be discussed by the whole justice and security cluster. She noted that a person was only given parole if they had a permanent address and their family agreed to accept them back into their homes. For this reason, one should be careful about pointing fingers at the DHA for their handling of non-nationals, who might not meet these criteria. She agreed about the need for bail reform because there were people so poor that they could not afford even R1000 for bail, and neither could their families. This issue has been raised before. There should be alternatives to imprisonment, but it could not just be substituted with community service. Was there enough capacity to monitor community service? Was there any other alternative sentencing or did people just get sent directly to jail? It was said that drug crimes should be decriminalised, but if there was a violent crime because of the use of drugs, then what were the options? Sending them to jail or rehabilitation? Was there enough capacity? Were there enough social workers, counsellors and therapists to assist the criminal justice system in this regard? The bail fund was a very nice idea but who was going to administer the fund and where would the funds come from? What criteria would be used to select beneficiaries?

The Chairperson said that budgeting was a perennial issue. There needed to be an innovative approach to resourcing JICS as an independent body. She agreed with JICS’s views on long sentences and particularly mandatory minimum sentencing. In her personal experience as a prosecutor, people who could not afford flashy lawyers invariably received the full minimum sentence while people who could afford expensive lawyers always managed to find circumstances that necessitated the imposition of a lesser sentence. For years, people had been sentenced to long-term imprisonment and the crime rate had increased. JICS should also look at international best practices and what worked in other African jurisdictions. She said the issue of overcrowding relating to procedural issues could be solved very easily. There was legislation in place that dealt with protracted procrastination in criminal trials both on the part of the accused or its representatives and sometimes also on the part of the state. Unfortunately, it was not effectively or efficiently implemented. As a prosecutor, she had experienced a very long trial during which the most ridiculous applications for postponement were put forward. The judiciary had to be more hands-on in refusing spurious applications for postponement, while prosecutors must be forced to finalise a matter if it is enrolled, and SAPS must be forced to finalise investigations. Investigations could continue for ten years before bringing a docket. There should be a workshop with all the role players, including the National Prosecuting Authority (NPA). She recalled a programme in the 1990s where members of the bench, attorneys, and advocates volunteered their time to deal with cases where an accused had been in custody for a very long time. It had worked exceptionally well. There was no real reason why this could not be done again. She knew that there were people in the legal profession who would be willing to do this. People needed more education on what bail was because the general public seemed to think that bail was connected to guilt or innocence and with the seriousness of the offence, whereas in fact, it was a means of securing a suspect’s attendance at their trial. She asked if JICS had visited the Kutama Sinthumule Private Correctional Centre and whether there were any best practices being used there that DCS should be looking at. Was it better or worse there than at DCS facilities? She said that there was a lack of respect for the legal profession, prosecutors, SAPS, and DCS among people generally. She mentioned that the British police force was unarmed but was still arguably the most respected police force in the world because it is effective and people actually cared when a British policeman addressed them. There is a sense of mutual respect and people actually turned to them for assistance. In South Africa, by contrast, the police were treated with no respect and nobody expected them to provide any assistance, to the extent that people did not even bother to report crimes. The issues raised by JICS needed to be addressed to ensure that DCS, SAPS, and prosecutors got the respect they deserved and needed in order to be effective. The mindset of people had to change so that people would also want to work for SAPS or DCS because they believed that they could make a contribution and help people who went to prison to become better people when they were released.

Mr Maseko-Jele recalled that the Committee had had a meeting with the Office of Chief Justice (OCJ) regarding the problems it was now discussing, but it had not been able to raise all the issues in the manner it was now able to raise them. The matters of sentencing and bail reform were constitutional issues or Bill of Rights issues but there were also issues of Ubuntu. Judges and magistrates should be able to look into this. The issue of remand detainees was also something that had to be addressed. She suggested that there be a meeting with the OCJ and another intra-Committee workshop before approaching other departments.

Justice Cameron identified three kinds of problems that the Committee has raised: systemic problems such as the lack of respect for the police, operational problems such as judges indulging unreasonable requests for postponement, and structural problems such as legislation and regulations. He supported the proposal to get a wider buy-in from other governmental departments and entities on the problems. Generally, a more inclusive social dialogue, driven by this Committee, was necessary. He suggested a date early in February 2023. He reported that the Chief Justice shared his concerns about prison conditions and supported his effort to get individual judges to visit individual prisons.

Mr Misser said that there were many best practices being implemented in correctional facilities run as public-private partnerships (PPPs). Another good example was the facility in Mangaung. There was already A set of norms and standards was determined by the judiciary in 2016. What was needed now was to bring it up to speed, under the leadership of the Chief Justice.

The Chairperson said she was aware that the contract period for the PPPs was limited. What was the contract period in years and when would the Kutama Sinthumule contract be coming to an end?

Mr Misser though it was 20 years and that the Kutama Sinthumule contract was coming to an end sometime next year.

The Chairperson asked what was going to happen to the facility after the end of the contract. Would it revert back to DCS? Would it continue to be a pocket of excellence or would it be dragged down to the standard of the rest of the DCS facilities?

Mr Misser replied that he thought that it would revert to management by the DCS. He was not sure how operational matters would unfold going forward. The National Commissioner together with the leadership of the DCS would be in a better space to respond to this.

Ms Maseko-Jele said that DCS could provide more information on the PPPs. What about the capacity in terms of human resources? She asked for a report on these PPPs. There should not be any issues when the contracts ended.

Mr Misser agreed that there should be engagements with the DCS, the Minister and ,other relevant role players regarding the human resources at the PPPs specifically.

A DCS official said that the PPPs lasted 25 years. The Kutama Sinthumule contract would end in 2027 and the contract for the Mangaung facility would end in 2026.

Dr Newhoudt-Druchen suggested that JICS begin consultations with the DCS about the management of these facilities as soon as possible, rather than waiting until they were formally handed over.

Mr Misser acknowledged that there had not been any discussions yet but said that JICS could put the matter on its quarterly agenda so that it could be raised with the National Commissioner. Thereafter, progress could be reported to the Committee.

Justice Cameron said that he was skeptical about private prisons in general, on the basis of pernicious practices that had taken place in private prisons in America. The same things had not happened in South Africa only because there were fewer private prisons and they were much more closely scrutinised. He was of the view that the end of these PPPs would be a good thing even if there were some good practices that could be adopted. The incarceration of offenders was a public duty that should in principle and in practice be entrusted to the State and not to private companies. Just one issue with a privately run prison was that it had to be kept full in order to get paid, which meant that it was very difficult to convert it from a maximum to a medium security facility, for example.

Mr Misser said that Justice Cameron had already sent a letter to the Minister and there had been a round-table discussion on the possibility of a bail fund. Obviously, it would not be managed by JICS itself. It was something innovative that was trying to address problems specific to remand detainees.

Justice Cameron said that the bail fund would be made up of private donations. It would not be profit driven. JICS had prepared a memorandum on the fund which could be shared with the Committee and more widely. It was parallel and would not cost the State anything. The fact that suspects who had been granted bail were being detained was a malfunction of the system that JICS hoped to address from the outside.

Ms Maseko-Jele said there should be a follow-up discussion on the bail fund. She was concerned about it being funded by private individuals. She recalled similar concerns about the funding of the NPA by the private sector. Care must be taken not to compromise the independence of these institutions concerned with law and justice.

The Chairperson understood that it was a private collection of mostly charitable donations used to pay the bail for people who could not afford it. It would not affect any state-owned institution. It is sort of a contract between the accused person and the fund. If the accused skipped the trial the money would be at risk, and if they attended the trial the money could be recovered.

Justice Cameron said that the concerns raised by the Committee were absolutely justified. He explained that the bail fund was indeed external to the State but it was not quite analogous to the situation of the NPA and private funding. The NPA was a state institution, whereas the bail fund would be funding a private individual who was within a state correctional institution but could afford to pay for the bail which they were entitled to. Funds had been raised for a feasibility study. The memorandum that has been carefully put together should be made available to the Committee to enable members to understand it better.

Mr Misser reported that the deportation orders released by the DHA for non-national prisoners whose sentences had been served were not always coming through. There seemed to be some delays. The problems were being discussed by DHA.

Justice Cameron asked the Committee to urgently call upon DCS to use its legislated power to decongest prisons. Judges needed to take a harder line on refusing requests for postponement of trials. The antics of defense lawyers should not be indulged. Practical ways to reduce unnecessary, unjustified, and unwarranted delays in the criminal process must be found. Perhaps the Committee could deputise a member to liaise with JICS on the bail fund. The Committee must see that sex work was decriminalised, through the same enlightened approach that had led to the decriminalisation of homosexuality. The moral questions must be separated from the terrible reality of how sex workers, who were mostly vulnerable women providing for children, parents and relatives in rural areas, were being treated in the criminal justice system. The Committee should also form a subcommittee to work with the JICS on decriminalising certain petty offences, including some drug offences. There was a crisis of murder on the Cape Flats, fueled by drug syndicates and criminal gangs. South Africa as a whole had a murder rate already six times the world average but in Khayelitsha it was about fifteen times. JICS would report back to the Committee on issues related to private prisons.

Dr Newhoudt-Druchen observed that there had been no mention of mentally ill offenders. She had read an article about a mentally ill man who had been arrested immediately when he failed to pay for a meal after a mental episode. The man was physically abused in custody and his father struggled to get him out of jail. The prisons were so overcrowded and this man needed medical treatment. Mentally ill patients who were in state correctional centres should be looked at because they also added to the overcrowding in prisons.

Justice Cameron thanked the Committee for raising this issue.

Mr Misser said that there were 117 declared state patients in correctional facilities across the country. The greatest challenge was in the central management region (Bloemfontein, the Free State and the Northern Cape region). Justice Cameron had already penned a letter to the Minister of Health to intervene. One problem was that there weren’t institutions to house mentally ill offenders in all regions. Inmates with some form of psychotic behavior or some form of psychosis were also burdening and straining the incarceration system. He confirmed that this issue would be looked at.

Mr Magwanishe said that another workshop could be held in the first week of March 2023. He asked JICS to share a written list of the issues it had raised in order for it to become part of the parliamentary process.

Justice Cameron suggested 10 March 2023 and said that the action list would be sent.

Dr Newhoudt-Druchen requested information about the occurrence of mental illness and episodes among prisoners who had been subjected to solitary confinement.

Justice Cameron replied that JICS had recently initiated a study of the effects of solitary confinement at Ebongweni Super Max Correctional Centre in Kokstad.

Ms Maseko-Jele asked about the challenges of women and children in prisons.

Justice Cameron replied that JICS was worried about the provision of female hygiene products to people in prison. It was also dealing with the issue of whether a female inmate who entered incarceration while pregnant would get quick enough access to an abortion if she wanted it. It seemed that she would need permission from the head of the correctional centre first, although this requirement did not appear in the Termination of Pregnancy Act. These were issues that JICS was very concerned about.

The Chairperson thanked JICS for its efforts in crystallising its points in a manner that the Committee could easily digest. The Committee has benefited enormously from the workshop. She agreed on the need to revitalise crime intelligence across the entire spectrum. There had to be better administrative systems and better planning within the DCS. It was constantly missing deadlines. The fact that there was no synergy across the departments in the criminal justice system was a matter of ongoing concern. It would be pointless to address these issues if they were not being fixed from the beginning to the end. A more comprehensive workshop would be of great value and of great benefit as long as the outcome of that workshop was a serious action plan that would be implemented, hopefully before the end of the sixth Parliament. There would be a number of departments that would have to present including the Department of Public Works (DPW) DHA, SAPS, and the NPA. The state of prisons was a source of constant embarrassment.

Ms Maseko-Jele suggested that there be a workshop with the OCJ first before the broader workshop. This was because the Minister of Police had said in a statement that it was the duty of the police to arrest people, implying that it was not responsible for what was happening in the courts. The problems in the courts should be addressed first.

The Chairperson said that the Committee would have to discuss its programme before the broader workshop. The Minister of Police was not incorrect, although this did not mean that the police was entitled to arrest people and dump them at the doorstep of the courts without reasonable evidence of wrongdoing. In such a case the prosecution was obliged to enroll that matter, but the court would have to waste time striking it off the role. It may be the police’s job to arrest people but it had to be done thoroughly and efficiently. There could not be a blame game because these departments and entities fed into each other. She thanked everyone for their participation in the workshop.

Mr Magwanishe also thanked everyone for working together. Despite members’ different political persuasions, everyone was clearly united in their efforts toward the betterment of the country. He thanked Justice Cameron for always being humble and intellectually robust. Some of the issues raised could perhaps form part of the study tour. A lot of insight has been gained through the workshop.

Justice Cameron also thanked the Committee.

The meeting was adjourned.

 

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