Judicial Inspectorate of Correctional Services: Introductory meeting

Meeting report

Introduction by Chairperson
Mr Smith told the Committee that the introductory meeting was intended to provide understanding of the role of the Judicial Inspectorate of Correctional Services (JICS) in the correctional services sector. He urged members to be as interactive as possible, to engage, and to attempt to move beyond questions of clarification to proposals as to how parliament could advise the JICS.

Judicial Inspectorate of Correctional Services (JICS) briefing
Inspecting Judge Deon van Zyl introduced his team, pointing out the qualifications and experience of each member. He noted that he had been appointed as Inspecting Judge of Correctional Services for three years by the then-Acting President.

Mr Gideon Morris, Director, JICS, told the Committee that the presentation would cover the areas of structure, functions and operations of the JICS. He presented a brief overview of the JICS structure. The JICS was structured around a single national office. Significantly, he pointed out that the Inspectorate did not have the authority to create posts. Posts had to be approved by the National Commissioner of Correctional Services.

The statutory objective of the JICS, in terms of Section 85, was to facilitate the inspection of correctional centres, so that the Inspecting Judge could report on the conditions in, and treatment of inmates. The JICS’s vision was to ensure humane conditions of detention. He said that there was often a mistaken perception that these centres offered luxurious accommodation and treatment. JICS had a commitment to good government. Corruption had no place in the JICS.

Mr Morris noted that the programmes were reviewed in more detail in the attached document, and the appointment of Independent Correctional Centre Visitors (ICCVs), and dealing with complaints, were especially important aspects.

Mr Michael Prusent, National Manager of Support Services, JICS, explained that independent prison visitors were laypersons drawn from the community. Visitors were currently being recruited. They were generally drawn from communities situated close to correctional centres. An effort was made to appoint visitors who were involved in the community. A total of 181 were currently employed, and they were appointed on a three-year contract.

Mr Adam Carelse, Head Trainer, defined the legal mandate of Visitors Committees. In terms of Section 94(1) the Inspecting Judge could establish such committees in particular geographical areas, consisting of the ICCVs appointed in a given region. The Committees met on a monthly basis. The aim was to breach the gap between ground level and head office, and between the community and correctional services. The objective was to get more organisations involved in correctional matters. A complaints database was being established. Monthly reports, inclusive of 200 word reports, had to be submitted to the Inspecting Judge.

Ms Pritima Osman, National Legal Services Manager, JICS, reviewed the complaints reporting mechanism. This had been established to prevent abuses by correctional service staff.

Mr Umesh Raga, Assistant Manager, Legal Services, JICS, said that with regard to mandatory reports, the Act provided an appeal mechanism. In terms of Section 25(2), solitary confinement could only be implemented once the Inspecting Judge had confirmed such a penalty. Death and the use of force had to be reported, with a notice to the Independent Visitor. The Department of Correctional Services (DCS) also had a duty of care.

Mr Mentoor, representative of JICS, explained that complaints were the only recourse that inmates had to make their grievances known, and part of the brief of the Independent Correctional Centre Visitors was to conduct interviews with inmates, about their complaints. Unresolved complaints were forwarded to the JICS. The community, the Public Protector, Members of Parliament and others, could capture complaints directly on the JICS website. ICCVs gave feedback to prisoners.

Ms Violet Rubu, Area Coordinator, JICS, noted that every effort was made for the performance audits of the ICCVs, to comply to minimum standards. An ICCV T-shirt would be made available to Independent Visitors to clearly identify them.

Mr Morris briefly reviewed the budget. From 1989 to 2006, there had been steady growth in the budget, but thereafter the budget stopped growing. Since the retirement of Judge Fagan, Judges Erasmus and Yekiso had only been appointed for three-month periods. The three-year appointment of Judge van Zyl could drive the budget.
 
Discussion
Mr Smith encouraged Committee members to engage and to be critical, and to go beyond mere questions of clarification.

Ms W Ngwenya (ANC) commended the work of the JICS, and invited that body to work closely with the Committee.

She enquired about the JICS relationship with the head of the Board dealing with parole, concerning parole complaints from inmates. The Committee experience had been that the parole system was not functioning well.

Judge van Zyl replied that the relationship with the President of the Parole Review Board, Judge Siraj Desai, was good. The Inspectorate did deal with parole complaints, and communicated with Judge Desai. A number of parole boards were sorted under the Parole Review Board, which meant that parole matters could be dealt with through this structure.

Ms Ngwenya commented that there were some people held in cells, who rightfully belonged in hospital.

The Judge responded that 500 people had already died in correctional centres during the first half of the year. These were said to be natural deaths, but he had a problem with seeing apparently healthy people going to such centres, and then being declared dead a while later. Post mortems and even inquests were needed to determine the causes of prison deaths. If a prisoner had been raped and infected with Aids on his first day in prison, and subsequently died of related causes, it could not be considered a natural death. The Inspectorate wished to see such issues resolved.

Ms Ngwenya referred to inmate complaints, asking whether, in the event that these were referred to the Head of the Correctional Centre, any effort was made to get back to inmates, to inform them of when and how the complaint would receive attention. She told the Committee that she herself had been imprisoned in 1986, during which time her child had died. When she asked the prison authorities to attend to the burial of the child, she was first told to wait for two weeks, then informed of a further delay, until she was finally told that a report would be given only after six months. She enquired whether these kinds of delays still occurred. She also asked how the Inspectorate would handle unanswered complaints, for instance from inmates who had suffered injuries like burns in the correctional centre. Finally, she noted that people died while in the custody of prison authorities, yet the authority then expected the family to assume responsibility for a burial.

Judge van Zyl expressed his condolences about the death of the child, and conceded that indeed that had been one of the problems around the way matters were dealt with in the past. Now that the Judicial Inspectorate was properly in place, such events should not happen. If something like this was indeed happening, it had not been brought to the attention of the JICS. He would like to see complaints dealt with and finalised in under three months.

Judge van Zyl continued that the Independent Prison Visitors tried to keep in contact with complainants, and tried to provide feedback. However, complaints had to go to the prison authority first. With regard to injuries suffered while in prison, he noted that inmates inflicting any injuries could be separately charged and convicted of crimes committed in prison, quite independent of the convictions for which they had originally been incarcerated.

Mr A Fritz (DA) remarked that the DCS did internal investigations into unnatural deaths, and he wondered whether the Inspectorate should also conduct an independent investigation. He said that the National Commissioner of Correctional Services had indicated that he would like to have a round table conference on rape, and that that international collaboration on the topic was desirable. The Committee had heard of complaints mechanisms, but, like Ms Ngwenya, he had wondered about feedback on complaints.

Judge van Zyl, commenting on prison rape, said that an organisation had been established in the United States, which was initially called Stop Prison Rape, but which was later renamed as Just Detention International. The Inspectorate had met with a director of that organisation on the previous day and was generally looking at the way the problem was handled in other countries. Sex assaults were rarely reported. If a prison gangster wanted a new detainee as a “wife”, and raped him, that prisoner would often not report it, for fear of being killed or harmed by the gangs. He hoped that gang influence in the prisons had diminished over the preceding years, but it could not be said that it had ended.

Mr Smith remarked that independent inspections reportedly attempted to resolve matters like complaints, but he asked whether there had been a proper response to their findings. If the Minister failed to implement such findings, then not much could come of the matters. He referred to two meetings held with Judge Theron in April 2009, about  the Rustenburg Centre, where complaints had been lodged about lack of water in cells, the chaotic state of the kitchens, leaks and the deterioration of workshops. Nothing had as yet happened as response to that meeting.  

He assured JICS that this Committee would enable it to reach the DCS, as the Committee could call the Department in to answer to reports from the Inspectorate.

Judge van Zyl said that the Act had been amended for the Judicial Inspectorate to report to the Committee, as well as to the Minister. The Minister did receive regular reports, but that procedure did not grant powers to the Inspectorate. As Inspecting Judge, he could not make the same kinds of orders that an ordinary Judge could. The fate of the JICS was still in the hands of the Department. The most the Inspectorate could do was to make detailed reports, and then await and take up further complaints.

He urged that every effort be made to get the necessary legislation into force. This had been signed by the President, but still had to be promulgated through publication in the Government Gazette. The Inspectorate had been reporting to the Committee, with the strong expectation that the amendments would come into force, but JICS’s powers were academic until such time as the amendments became operational. When that happened the JICS could increase its budget, conduct investigations, and see them dealt with. He remarked that he regularly received reports from judges who could visit prisons in terms of Section 99. Although he had forwarded reports to the Department, there was not sufficient feedback.

Mr J Selfe (DA) referred to the statement by Mr Morris that the JICS had to depend on the National Commissioner for posts, and depended upon the DCS for its budget. That, in his opinion, was not logical. JICS was supposed to be an independent oversight body, yet had to depend on the DCS for posts and money. He made the point that there must be a better way to achieve independence for the Inspectorate. He noted that with effect from the following financial year, Parliament would have the power to amend budgets, and proposed that the Committee could promote the independence of the Inspectorate.

Mr Smith made the point that an increased budget would have to come from somewhere else, and he asked for the Inspectorate’s comments.

Mr Fritz added that the source of the budget was important, and so was its size. The question was whether the current budget was sufficient to enable the JICS to execute its mandate.

Judge van Zyl responded that there had been some delay with his appointment prior to his having been appointed by the then-Acting President Motlanthe, for a period of three years. JICS maintained a good relationship with the DCS, and the two wanted to work together to improve matters for inmates and the community. However, real independence was of the utmost importance. He drew a parallel with the situation of the courts having to depend on the Department of Justice. The judiciary was not as independent as it ideally should be. A Chief Justice should rightfully be on par with a Minister. The same applied to the JICS, which would certainly be better off if it were to be financially independent, and the Committee could assist with this. JICS’s independence had to be rigorously upheld. The JICS desired good co-operation with other role players, but had to be independent in its criticism of them where necessary.

Judge van Zyl noted that the JICS could only get by on its budget because Mr Morris managed it so tightly. The JICS did not want liberty, as it stood for strict finance control, and in fact could be used as a good case study of running on a small budget. However, JICS desired to be an effective arm of government, not just a watchdog. There was a commitment to reform.

He stated that the JICS could not be effective if it did not maintain a good relationship with other role players. He himself was particularly concerned with arrest and detention, and would always insist upon knowing if the arrest had been justifiable, so that it did not qualify as wrongful arrest. The problem was that there was a South African Police Service (SAPS) tradition of basing its success rate on arrests made, rather than on convictions obtained. Of the 165 000 persons held in prisons, possibly 50 000 were awaiting trial. Many of these should not have been arrested in the first place, as there was not sufficient evidence to justify arrest. The JICS would like to see that number halved in the immediate future. There would hardly be a need to build new correctional centres, if that process could take its course properly..

He noted that good communication with the SAPS and Department of Justice personnel was essential. Cases were often postponed for a year or longer, and people would be sent back to prison while awaiting conclusion of their trial. A conviction had recently been set aside that had stalled for four years. People’s lives were being wasted through this, and he pointed out that postponement was only justifiable if there were investigating officers working on the case – if not, then the accused should rightfully be released, as he was in fact being unlawfully detained. There had to be seminars with role players. Magistrates and prosecutors were inundated with cases, and resorted to postponement, but did not give due concern to the infringement of rights.

Mr Morris also responded to questions of budgeting and independence. He said that the JICS had to compete for scarce budget resources, much like the Independent Complaints Directorate (ICD). JICS relied heavily on Independent Prison Visitors, who were appointed as independent contractors who had to produce results and were paid per hour. Oversight bodies were in competition for funding, and there was a need to look to other business models. At the moment, 0,1% of the DCS budget was awarded to oversight. He would like to see that figure raised to between 1% and 2% of the total budget.

Mr Morris said that the amendment of Section 89 of the Correctional Services Amendment Bill would make it possible for JICS to create posts without having to obtain the permission of the Commissioner. In practical terms, the JICS would still need to co-operate with the DCS on the PERSAL personnel system, since it would be far too costly for JICS to set up its own system, but JICS wanted the assurance that if jobs were created on PERSAL, they would be treated as priority.

Mr Morris also commented upon what had been done in respect of past reports submitted. Judge Yekiso had commented in the previous year that maintenance of correctional centres did not fall under the control of the DCS. Department of Public Works maintained the correctional centres, and this caused frustration. A more holistic approach was called for, and he hoped that the Portfolio Committee would be able to do oversight.

Mr Fritz expressed interest in seeing the 200 word reports submitted by Independent Prison Visitors to the Inspecting Judge, saying that these could be very valuable to the Committee, who might be able to prevent situations like the one at Rustenburg. He asked if these could be made available to the Committee.

Mr Morris replied that the reports could be made available speedily. He however cautioned that these were based on the perceptions of the Independent Visitors, and had not been verified.

Mr Smith said that the Act had to be made more practical to grant authority to the Judicial Inspectorate, so that the DCS would be obliged to explain delays.

He continued that a funding model could provide an entry point for those independent bodies who were finding themselves under funding constraints, and could also deal with challenges around the filling of posts, which had been highlighted by the Ministry. Departments could be brought to book if performance was affected by a 30% vacancy rate.

Mr Smith did not accept the argument that the DCS could not be blamed for maintenance problems. Cabinet had a responsibility, and it should be possible for the Minister of Correctional Services to approach the Minister of Public Works to try to find a better solution, rather than proffering excuses. All Ministers had a collective responsibility for upholding the Constitution, and the Minister of Correctional Services could not be absolved.

Mr Smith requested that the Inspectorate engage further with the Committee once it had also discussed matters with the Department.

The meeting was adjourned.