Judicial Inspectorate for Correctional Services (JICS) briefing

Meeting report

The Chairperson opened the meeting and thanked everyone, particularly for agreeing to attend the meeting, despite the fact that Parliament is on recess. He said that this was a reflection of their commitment and hard work. The Committee had invited the delegation from the JICS in order to hear from them and to chart the way forward on the various issues that are outstanding.

The Chairperson then introduced the members of the Committee that were present in the meeting, indicating their political parties.

The Chairperson asked Hon Van Der Westhuizen, the Inspecting Judge of the JIS, to introduce the rest of his delegation and commence with their presentation to the Committee.
Hon. Van Der Westhuizen introduced the following members of his delegation; Mr Michael Masondo (Director: Management Regions, JICS), Mr Vickash Misser (Chief Executive Officer, JICS), Ms Cupido, Mr Lennard De Souza (Deputy Director: Inspections/ Investigations, JICS), Mr Eddie Brewis (Acting Director: Supplier Services- overseeing Human Resources and Finance, JICS) and Mr Umesh Raga (Acting Director: Legal Services, JICS). He stated that their annual report for the year ending March 2017 was not ready by the time of the previous meetings and the Minister apologised on behalf of the team responsible for compiling the report. It is now ready and Mr Masondo was asked to present it to the Committee, especially on the issues that directly affect their capacity.

Briefing by JICS
Mr Masondo explained that JICS was established in terms of Section 85(1) of the Correctional Services Act 111 of 1998, as amended. This provision authorises the inspection by the JICS of correctional centres and the conditions of these centres, to enable the Inspecting judge report on the treatment of inmates in such centres.

In terms of its organizational structure, the senior most person is the Inspecting Judge, who is Hon. Van Der Westhuizen. The CEO is the next in the hierarchy, who is followed by three Directors. The next person is the Directorate of Legal Services. This is the current structure of the organisation, but it will change in due course as a result of the restructuring process that is anticipated, as it expands its functions.

MrMasondo about the inspections that were conducted. This comes from Section 85 (2) of the Correctional Services Act. He said, “This is the only strategic indicator that we report on regarding the annual performance plan… and we report under a correctional services programme…our strategic objective is to provide independent oversight relating to the treatment of inmates and the conditions in the correctional facilities and PPPs (Prisons Private Partnerships)”
In 2015-2016, JICS reached its target because it had targeted 81 centres out of the 243 total centres (33%). The reason why it was unable to inspect more facilities in that time was due to capacity issues, for example, they have only four inspectors to conduct the inspections in all these centres. This is a major reason for the attempts to enhance the functions of the organisation through the restructuring process that is set to commence soon. Similarly, in the 2016- 2017 period, it targeted 81 of the 243 centres.

The focus areas for these inspections included population and rate of overcrowding, specialist staff, structure and maintenance of facilities, healthcare and the rehabilitation of mentally ill state patients. 17 investigations were conducted relating to the following; inmate on inmate assault, official/ warder on inmate assault, unlawful segregations, lack of adequate bedding, inmates unhappy about eligibility for release on parole not being processed and unlawful cavity search of inmates and assault.

Mr Masondo lamented about the challenges they have been facing relating to reporting these and other matters, for example their IT system is broken and no longer compatible, thus causing some reports to be incorrect. This reveals that they require assistance from the Department of Correctional Services (DCS) in developing a system to enable them to report efficiently and effectively. The Mandatory Report is a statutory mandate requiring that each and every death that occurs in the correctional centre, the correctional services must report it. The correctional centre must also report to the Inspecting Judge, who makes reports, on; segregation, the use of force (in terms of legislation i.e. Correctional Services Act, the use of force is permitted, but it must be proportional to the objective sought).
Section 15 (1) and (2) talk about death in correctional centres i.e. the head of correctional centres, must, in terms of Section 2 of the Inquests Act, report all unnatural death. Section 15 (2), states that any death in correctional centres must be reported forthwith to the inspecting judge who may carry out or instruct the National Commissioner to conduct any inquiry. 52 deaths from prima facie unnatural causes were reported. Identification of the actual cause of death is often delayed for want of the medico-legal autopsy and other scientific reports. These delays hamper the ability of the JICS to report correctly. Suicides comprise of 27 out of the 52 deaths above. The rate of unnatural deaths in 2016/2017 (52) was a decrease from those reported in 2015/2016 (62). With regards to deaths as a result of natural causes, 497 inmates died, the bulk being in Gauteng, followed by Limpopo/ Nelspruit, Kwa Zulu Natal (KZN), Free State/ Northern Cape, Western Cape and Eastern Cape.
On the use of force, he emphasised that the Correctional Services Act states that a minimum degree of force may be used and the force must be proportionate to the objective. It also provides that the use of force must be reported to the inspecting judge. Incidents of the use of force have been escalating over the last few years, as depicted on slide no. 16 of the presentation. This worrying for JICS.
In relation to complaints received, both internal and external stakeholders complained, and they have been clustered into six clusters. Cluster 1 deals with: appeals, bail and legal representation matters. 48 complaints were received from inmates, families and other stakeholders in this regard. Cluster 2, dealt with conversion of sentence, medical release, parole, re-classification, rehabilitation programmes and remission. It had received 97 complaints. Cluster 3 concerned communication with families and transfers. It had received 157 complaints. Cluster 4 was responsible for conditions, food and health care. It had received complaints. Cluster 5 relating to elements of violence had received 298 received and cluster 6, which focused on corruption, received a solitary complaint.

The appointment of ICCV is regulated by section 92 of the Correctional Services Act. There are currently 310 ICCV posts that were created to service 243 correctional centres. They are spread out in four different regions i.e. the Central Management Region in Bloemfontein (61 filled posts), Eastern Management Region in KZN (65 filled posts), Northern Management Region in Centurion in Pretoria (61 filled posts) and the Southern Management Region in George (59 filled posts). The George office will be relocated to East London.
Furthermore, in Human Resources, there are 63 filled permanent positions, 5 vacant positions and 17 on contract. In terms of Employment Equity, there are 21 black male employees, 20 black female, 9 Coloured male, 9 Coloured female, I male Indian, 1 female Indian (based in Durban), 2 White males and no White female employee.

Mr Masondo indicated that he total budget allocation was R65,309,000, compensation of employees was R57,380,000. Minor assets (less than R 5000) was R883,000 and goods and services was R 7,046,000. The expenditure for the financial year was R 42,195,401.40. JICS underspent by 35.39% (R 23,113,598.60) of the total budget because of; compensation of employees (underspending of 38%- R 21 823 801.58 due to the delay in the appointment of permanent employees and the outstanding 18 permanent posts which were not filled), on goods and services, the expenditure was R 6 334 999, amounting to a saving of R 711 000 i.e. 89.8% of the budget was spent, and finance leases (overspent by 3.107% due to insufficient allocation to the budgetary item). He thanked the members for affording him the opportunity to present to the Committee and the Ministry for the various appointments and positions he has held.

Hon. Van Der Westhuizen mentioned that the Inspectorate was working on the new annual report and assured the Committee that it will publish it in September as scheduled. He briefly discussed their reporting duties. The Act says that the inspecting judge must report to the Minister and the relevant parliamentary committee on every inspection. In practice, the JICS has in the past, divided its reports into quarterly reports and submitted them through the Minister and Parliament. Some of these reports have gone missing (before Hon. Van Der Westhuizen’s tenure), therefore a practice developed that they submit them through the National Commissioner of Correctional Services. At times, the Minister did not receive these reports. As a result, today, after the compiling of quarterly reports, they are submitted and the JICS insists on an appointment with the Minister four times a year to specifically hand him/ her the report. Such a meeting happened at the end of February 2018 and there is one planned for the week of 25 June 2018.
He then showed the Committee the quarterly report for 1 October 2017- 31 December 2017, which was circulated to the members of the Committee at an earlier date. This report was also handed to the Minister. He stated that they are actively trying to break away from the practice of having “boring reports with tables”, in favour of making them more readable and visually more attractive and colourful e.g. a new log has been developed, they have their own corporate colours et cetera.
In addition to these compulsory reports, the JICS does what they call “theme reports.” “If violence is a theme and not just a collection of separate incidents, and has systemic implications, then we will do a report on that.” One such report on violence is about to be completed. It was based on a few specific incidents. Other themes are on facilities and “supermax facilities” (deals with an international perspective, which is highly controversial). The Minister has asked JICS to look into corruption because the Act says it must look at “corrupt and dishonest practices.” It is not clear about the scope of this mandate, therefore the organisation is wary about tackling an issue that it may not have capacity to handle. These are the “theme reports” that JICS is working on.

From the annual report that Mr Masondo presented, he decided to focus on the theme of Mandatory reporting, to stress its importance. The Act says that the Department (without JICS asking) must report to JICS on inter alia issues such as segregation. He reiterated Mr Masondo’s assertions that their reporting systems have collapsed, thus impairing their ability to capture crucial information in the reports. The DCS is the body that controls the system.
In addition to the above, he addressed the issue of independence because the Mandatory Reporting leads to independence. He began by explaining the legal framework of JICS. The Constitution does not mention the JICS, therefore it is not in the same position as bodies like the Public Protector. It however provides for the basic rights regarding detention in Section 35 and it strongly emphasises human dignity. JICS is a creation of the Correctional Services Act, which states that the JICS is an independent office under the control of the inspecting judge. However, the use of the word “independent” does not make one independent. This concept could mean different things. “It starts with one’s own mind, but it goes beyond that of course. No matter how independent I am, I need resources. Nobody is completely independent, even judge’s salaries are paid by somebody…not even the Chief Justice’s office or Constitutional Court can function without laptops. Someone to clean it etc. So we are talking about two levels of independence; one is interference (political or otherwise) and the other is capacity.”

He gave an illustration of a matter that is in advanced stages in court, which highlights the issue of independence of JICS. Sonke Gender Justice brought litigation against the state. They want the sections of the Correctional Services Act dealing with JICS to be declared unconstitutional. The President is the first Respondent, the Minister is the second Respondent, the National Commissioner of Correctional Services is the third Respondent and Hon. Van Der Westhuizen himself, is the fourth Respondent. The Applicant’s invoke the Constitution and international law to argue that JICS is not sufficiently independent. There was unanimity amongst all 4 Respondents in this matter that JICS should indeed work on its independence, thus justifying the arguments by the Applicants. This consensus was reached from various meetings convened by the president’s legal team. They had requested the Applicants to give them sufficient time to sort out their independence, but Sonke declined the request and are now awaiting a court date to continue with proceedings. They have also invited other NGOs and organizations to join the proceedings.

Hon Van Der Westhuizen stated that he had not experienced any obstruction from the Minister or this Committee from performing his duties effectively. From a political standpoint, the JICS, as a whole does not encounter interference from performing its duties. However, in respect to financial aspects, he stated that they had been experiencing difficulties in coordinating with the Department. He explained a previous incident whereby he noted they had received less budget than they normally received. Upon enquiring from officials in the Department, he was informed that it was as a result of budget cuts across the board. He enquired further from the CEO at the Department, who indicated that this was an error and had already been corrected. He also lamented the fact that their operational budget had been cut, contrary to the agreement between the Department and JICS.

On the issue of the facilities, he expressed that people often talk about issues of overcrowding. However, there are other issues that are less prominent, but are equally as important. “We are very worried about the state of some of our facilities. We are busy working on a full report of the facilities, which we will bring to you. Some facilities are new and in good shape, others are not.” He gave an example of some facilities where the ceiling does not comply with regulations and are so dangerous to such an extent that the only way to prevent escapes is to take away beds. This forces the inmates to sleep on mattresses on the floor to prevent them from climbing to the ceiling. He also talked about kitchens that lack a certificate of compliance with the regulations. Some of them are not tiled, as required. There are also some facilities, such as the state of the art facility in Kimberley, where ironically, there is no hot water because the hot water system is so sophisticated that when it breaks down, no one can repair it. “Engineers have to be brought from Johannesburg and sometimes, the United States to repair the hot water system.” Also, in this facility in Kimberley, there are some cells that are unoccupied because the doors cannot open. This is because these doors do not open with normal keys, but through a sophisticated system.
He said that similar frustrations also apply to their own offices. For example, their attempts to secure accommodation for the head office of the Northern region have been ongoing from the time he was appointed and the process is not close to conclusion. This relates to the processes of tendering and others. He expressed concern that it is inexplicable why things do not get done. He insisted that in most of these facilities, it is not the inmates that complain, but the officials working there.

Ms Cupido showed visuals through the projector on the conditions in some of the facilities. Most of the pictures depicted the poor conditions for example the places where the inmates take showers, the kitchens, which lack the basic necessities, the containers they use to collect water etc.

Hon Van Der Westhuizen also spoke about the insufficient prison uniforms for inmates and other stuff within the facilities. Additionally, he talked about the negative effects of overcrowding in prisons and the incidents of assault that have been reported, perpetrated by both inmates against fellow inmates and the prison officials against the inmates. These overcrowded facilities tend to be filled with other vices such as gang activities, corruption (because officials get paid very little), among others, are prevalent in these facilities. He acknowledged that he did not know what the remedy for overcrowding is, but suggested that the president could release a number of inmates.

He emphasised that although the JICS accepts the budget cuts, they do not understand why the CEO or anybody else must determine that they must for example, use less petrol (implying they travel less) and instead, appoint certain personnel, who they do not regard as crucial. They also do not understand why there is a shortage of uniforms, beds and shoes in the facilities. He asserted that these issues are linked to public works and suggested that it is because of corruption that a lot is going wrong in that Department.
He stipulated that they are considering conducting public hearings, but they would like to request for an audit to be conducted, perhaps in parliament. They would need money for this to happen, because they did not budget for public hearings. It is also not clear whether they would be required to pay for this or whether the Department would pay. He also mentioned that they may be unable to manage the public hearing processes, owing to their limited capacity. He stated that he had asked his office to request the Department of Public Works to be present at this meeting several times, because JICS needs them in order to properly perform its mandate.
He said that they had visited several prisons around the world, for example in Portugal, Angola, the USA, and several others. The shocking thing was not the state of the prisons, but the sentences being served by the inmates. Some inmates were serving life sentences without parole (such a sentence would be unconstitutional in South Africa). In some of these prisons, there were death chambers, where inmates serving life sentences would be killed. Therefore, “we have a lot to be thankful for. Pictures I have seen of prisons not only in South America and other African countries like in Russia for example, a women’s prison was like a concentration camp. So we have a lot to be thankful for. We are by far not the worst in the world…”

Discussion
The Chairperson emphasised that there must be political oversight over the activities of the JICS. Regional commissioners and Director Generals must report to the Minister and Deputy Ministers in order for them to have information with regards to what is working and what is not, for example “when we talk about the budget, that budget must be informed by the reality on the ground. Secondly, there must be parliamentary oversight by ourselves, as we are being criticised that we lack correctional centres.” However, he recognised that there needs to be a form of deference and consideration for the principle of separation of power, since the Committee is not the Cabinet and should not appear to want to run the Ministries and also should not interfere with the functions of the Inspecting Judge of JICS. He noted that there are failures of political oversight and parliamentary oversight. He also acknowledged that the JICS has performed its duties to the best of its ability, amid the challenges such as budgetary constraints as expressed above and the issues with the Department of Public Works, although he says that they should not use public works as an excuse for not achieving their objectives. He then opened up the discussion to the members.

A Member asserted that there is no need for a single Department of Public Works to provide funds for each project, instead there should be a Public Works Department in each department. He aldded that the JICS needs to be assisted to enhance its independence.

Hon Van Der Westhuizen said that there is an initiative to change JICS’s status from what they are now to a government component, as is in the public service environment. These negotiations have been going on since early last year and it is not clear when it would be finished. This process involves the Department, the Public Service Department and Treasury, to make them a so-called government component. Under this new agreement, they will be located outside the DCS, but within the Ministry. This is a long term solution to some of the problems identified above, but more immediate solutions must be sought.
The Chairperson complained about the time that has been taken to come up with solutions for the various problems identified by JICS and the fact that numerous other Department are often involved in assisting to come up with solutions. He was of the view that the Committee and JICS have enough skills and expertise to come up with the solutions themselves, without involving other Departments and taking years.

Mr J Selfe (DA) asked for clarification on what Mr Masondo meant when he said that their mandatory reporting system is broken and has collapsed. This was in lieu of the fact that a lot of public resources were used initially in procuring this system. He also expressed shock about the claim that JICS had been denied access into some facilities in KZN, and wanted to know what was being done in response to this. In addition to these, he also noted that mentally ill inmates often suffer further abuse in the different facilities: what is JICS doing in this regard to prevent such abuse? He also enquired about any insights from JICS into the effectiveness of community correction as a measure/ strategy to ameliorate overcrowding in correctional facilities. This was after giving as an example, a previous incident where he was in a meeting in Johannesburg that had a lot of Magistrates in attendance. A question was put to one of the Magistrates “why don’t you give alternative sentencing?” and the Magistrate responded that they do not have any faith in community correction.

Mr W Horn (DA) asked a number of questions. Firstly, he needed an explanation in respect to the situation of the ICCV vacancies. He noted that as per the two quarterly reports they have, in the October- December period of last year, there were various interviews but no appointments, whilst in January, there were neither interviews nor appointments. He therefore asked why the ICCV positions were not filled, yet the budget for this function was available. Secondly, he stated that for the whole of this financial year, there has been no information in respect to the use of force. This is particularly worrying because in respect to Mr Masondo’s presentation, there has been an incremental increase over the years of incidents on the use of force and it is unknown what the current situation is. Also, he wanted to know how JICS addressed this failure by the Department to provide the requisite information.

Mr G Skosana (ANC) referred to Mr Masondo’s presentation, reflecting an increase in the number of reported cases of the use of force from 2016 to 2017 and asked what the factors for this increase were. He noted that that only one complaint of corruption was received, yet corruption is known and often publicised by the media as one of the biggest problems facing South Africa, especially in the public sector, including in correctional facilities and even a number of officials in correctional facilities have in the past been arrested for engaging in corruption. It therefore does not follow that only one incidence of corruption was received by the JICS. Nevertheless, he wanted to find out where the one complaint was received from. Lastly, he insisted that the JICS explain why it has delayed in appointing members of the ICCV, yet it has the money to fill the positions. He also advised JICS not be proud of underspending, especially in its job, where there is a lot of frustration. He said they must spend the money that is allocated to them to also aid in motivating whenever they require additional funds or a larger budget, as it shows that they know what to do with the money budgeted for them.

In addition, he asserted that in order to tackle the challenge of overcrowding, other role players are needed, not just the correctional services, but also the justice cluster or the Departments within this justice cluster e.g. the security agencies, the police etc. Civil society is also needed in this respect. Parliament is required to engage with these and other stakeholders, but still maintain its oversight role over the Department of correctional services. Participation by all these role-players will go a long way in helping to find solutions to the overcrowding menace.

Ms M Mothapo (ANC) also emphasised the urgency in terms of solving the problem of overcrowding and the assault of inmates particularly by prison officials. She insisted that the right to life of inmates must be protected and safeguarded, in preparation to reintegrate them back into the community.

In response to the various questions raised by the members, Hon Van Der Westhuizen insisted that remand detention facilities in prisons fall under the jurisdiction of JICS, but not police holding cells. He also clarified that when he refers to “public hearings”, it does not mean that they ask the public to comment because the general public may lack the expertise to contribute to this debate. Instead, he means to invite or subpoena every possible official from public works or DCS to give evidence under oath and tell them where the problem is and to figure out what is going on. This is allowed under the Act in circumstances where for example if there is violence somewhere and they cannot get the truth out of the Department, they can compel officials to give evidence under oath.

In response to Mr Selfe’s question about the management information system, Mr Misser stated that these automated systems have collapsed severely in the past. They have written to the National Commissioner and all the heads of centres as well as regional commissioners, informing them of the procedures they intend to put in place, which is a manual reporting system in order for them to submit their statistics so that JICS can proceed with their duties. This is why, for example Mr Horn argued that the use of force statistics are non-existent. He acknowledged that this is the case because they are not getting that information.

The Chairperson interrupted to ask when it was that they sent the communication to these commissioners and heads of centres.

Mr Misser responded that they sent the communication in March.

Mr De Souza added that they have an alternative system, but acknowledged that the IT problem does exist.

The Chairperson then asked “don’t you think it is a gross omission not to escalate the issue to people that have the ultimate authority (referring to the Minister and the Deputy Minister)?”

Mr Misser said that they will inform the Minister.

Mr Misser insisted that since inspection is their core function, there is a need for them to restructure the establishment to meet its mandate of inspecting at least 123 facilities in this cycle. This is part of their turnaround strategy specifically in respect of inspections. On the question of access being denied in KZN, communication was sent by the inspecting judge to all regional commissioners nationally, a copy which was submitted to the National Commissioner, informing him of unannounced, announced and periodic visits as well as inspections. This was in an effort to enhance access to these facilities.

The Chairperson lamented the fact that whenever a problem arises, they do not escalate the issue to the Minister, yet it is him/ her that is accountable to parliament. “How then do we hold the Minister accountable?...”

Hon Van Der Westhuizen explained that they rarely conduct unannounced inspections for a number of reasons. One major reason why they often announce their inspections is for courtesy. “It is good for us if they prepare for the visit. It does not help to arrive there and the doctor is not there or the head of the centre…” But they do have the right to conduct unannounced inspections, but there is the potential of time getting wasted in the events that certain key persons are unavailable because there was no notice for them to be present.

The Chairperson again asked why matters are not escalated to the authorities.

Hon Van Der Westhuizen answered that it is because they try to be independent and not rely on the Ministry all the time.

In respect to the issue of mental health patients, Mr Misser clarified to the members who the state patients are, according to the Mental Health Act i.e. those that have been declared by a court to be mentally unsound. There have been several incidents in various facilities whereby mentally ill inmates have assaulted and even killed other mentally ill inmates. This shows the need to address the issue of mental health inmates.

Mr Raga stated that the provincial departments of health are the custodians of mental health institutions. He pointed to page 71 of their annual report, which identified mental health as a challenge, especially in the Eastern Cape. There is a need for collaboration and pressure on provisional departments. This is taking into account that the facilities themselves are insufficient to handle mental health issues amongst inmates, therefore provincial departments and other agencies must come on board to assist in this matter.

The Chairperson insisted that the Committee is not interested in hearing “we will be given suggestions, the investigation will go on… we are not interested in the investigations, we are interested in the solution to the problem because we are dealing with human beings that are suffering on a daily basis, these matters need an interdepartmental integrated approach… we cannot wait for another six months, unless we have another disaster which is going to embarrass government…” This emphasises the urgency by the Committee on these matters.

On the issue of ICCV vacancies, Mr Misser asserted that “we cannot be restructuring the entire ICCV programme to meet the new public management system…these vacancies are being addressed…about fifty vacancies that will be advertised very soon provincially across the country.” He also stated that the issue of use of force is contained in their report and is a matter they are prioritising. On underspending, he said that progress has been made regarding their financial controls, as will be reflected in the 2017/2018 annual report to be published later in the year. They now monitor their budget monthly, where they account for the expenditure of every cent to the inspecting judge monthly. They are also having procurement plans in place so that they can account to both the inspecting judge and to this Committee for every cent spent.

The Chairperson said that the Committee has never had a Bill coming before it to address the various matters that were raised in this meeting. He added that a legislative programme is needed from the Department as well as a report from interventions that can be embarked on immediately. He also instructed them to think about the issue of a public hearing, which must be done in due course. He complained that one of the key weaknesses of parliament is that several members often want to work unilaterally as opposed to operating collectively. He therefore instructed them to go back and identify the things that must be done immediately, then the Committee will direct it to the necessary persons or bodies. He requested a proposal be brought before the Committee by mid-July.

He concluded by thanking the members from JICS for attending the meeting as well as the Honourable members of the Committee for attending, despite Parliament being on recess.

The meeting was adjourned.