Delays impacting on Remand Detention population: by the Justice, Crime Prevention and Security Cluster & Legal Aid SA

Meeting report

Briefing by the Justice Crime Prevention and Security (JCPS) Cluster Departments
Mr Pieter Du Rand, Deputy Director General: Court Services, Department of Justice and Constitutional Development, noted challenges that led to delays in investigations and court proceedings, regarding Remand Detainees. Challenges included the equipping and staffing of SAPS forensic services; the shortage of detectives to conclude investigations; the backlog in detective training and experience levels; the shortage of judicial officers and lack of adequate capacity of the Legal Aid South Africa; overbooking by private attorneys and cooperation by witnesses.

Mr Du Rand looked at factors that influenced the length of detention. Interventions addressing the Remand Detainee population included the appointment of more detectives and improved training and skilling, and improved court output through the new Case Flow Management Guidelines and Legal Aid Protocol. The Family Violence, Child Protection and Sexual Offences Unit (FCS) had been re-introduced to ensure speedy investigation of such cases. The Division, Detective Services, had been formed to conduct inspections to ensure the quality of investigations.

Mr Du Rand discussed the impact of unaffordable bail on the awaiting trial population. Challenges included the non-application of the two-stage bail process by presiding officers.

Mr Du Rand told the Portfolio Committee that 11 facilities would be upgraded and refurbished to accommodate Remand Detainees. The National Treasury had advised Correctional Services to include the upgrading process in its facilities budget programme. Project time lines were being negotiated with the Department of Public Works.

Mr Du Rand concluded that the JCPS cluster was committed to the safety of the South African people. The Cluster was focusing on ensuring that the Remand Detention population was kept as low as possible, even though the courts had to deal with large numbers of serious offenders. Cabinet had recently approved a White Paper on Remand Detention and amendments to Correctional Services legislation, which would have a positive impact. The JCPS Cluster Departments had a constitutional obligation to ensure the safety of the community, which had to be balanced against the rights of remand detainees.

Legal Aid South Africa briefing
Mr Patrick Hundermark, Legal Development Executive, Legal Aid SA, said that such delays were complex. People were detained for longer than two years in some instances, even for as long as five years. Management of court documents had to improve. Accused were sometimes not present, or changed legal representatives. Lawyers sometimes represented two or more accused in the same case. Court officials could be absent. 65% of cases were withdrawn before trial. Legal Aid SA had set targets that could be monitored. Courts could not run continually, there had to be preparation for cases. Peer reviewing had been introduced as a monitoring mechanism. Legal Aid SA practitioners would not close files without appeal, when a case was lost. A database had been established to find children of between 16 and 18 years old who had received minimum sentences. Such sentences should be set aside.

Discussion
Ms W Ngwenya (ANC) said that delays were a serious challenge. Oversight visits had revealed that there were inmates who had been awaiting trial for more than five years. Heads of Centre were not effective. There had been a delay with providing statistics about such cases. She asked whether the period spent awaiting trial would be calculated into the eventual sentence.

Ms Kohler-Barnard, DA member of the Police Portfolio Committee, expressed concern about the juniorisation of detectives. The South African Police Services (SAPS) wanted to increase the number of detectives, but it had not been done sufficiently. In Portfolio Committee oversight, it had appeared that there were detectives who lacked training. She referred to a comment by the Inspecting Judge the previous week, that evidence had to be set aside in the Lotz case, because fingerprinting had been done improperly. Criminals walked free because of inadequate detective training.

Mr Vinesh Moonoo, Major General, Detective Services, Head Office, replied that training was not an overnight matter. The training division could accommodate a maximum of 1 200 detectives per year. In the current year only 800 would be trained. A two-week intervention in basic investigation of less serious cases, had been introduced. 4000 officers needed to be trained. The new curriculum would be introduced the following year.

The Chairperson remarked that if only 800 detectives were in fact being trained, it was misleading and objectionable to state in the presentation that 2153 new recruits were being trained. That did not belong there. It would be better if Mr Moonoo would simply admit that he did not have the answers. The Portfolio Committee was not prepared to accept inconsistencies and misleading information.

Mr V Ndlovu (IFP) asked what happened to magistrates who were derelict in the performance of duties.

Ms Cindy Chikunga, Chairperson of the Police Portfolio Committee, said that the new Bill on fingerprinting would help police obtain fingerprints from Home Affairs, which could assist in tracking down criminals. Untrained detectives had to deal with backlogs. The question was how new recruits could help. The new curriculum for detectives would only commence the following year. She asked how FCS offices could help reduce overcrowding. With regard to bail, she said that there had to be systems to monitor the granting of bail. She referred to the cash heist suspect who had been granted bail, and then went on to commit murder.

Mr L Max (DA) noted that he had recently been approached by a member of the public whose whole gate had been stolen. The Police did not want to pursue the matter, saying that there was no suspect. He said that the Police need a change of mindset. Recruits were not familiar with documents. There had to be inspections before leaving for court, and upon return. Senior police officers did not know what a docket entailed. Recruits fresh from college could investigate simple cases, and on the basis of their performance, detectives could be selected from among them for on-the-job training. It took time to train new recruits, and in the meantime there were many dockets to see to. Quick finalisation of cases was a deterrent to crime.

Mr Moonoo replied that there were directives for all levels of inspections. Steps would be taken against members who would not investigate for lack of a suspect. It was not for members to decide about such matters. A step by step guide for crime scenes would be available by the end of that year. The Detective Service Centre could form a basis for recruiting detectives. Trainees would be on probation for two years in the Centre.

Mr S Abram (ANC) noted that speedy investigation was possible. A body had recently been found, someone had been charged within days, and there was a conviction within a day. He asked why there was not more of that to be seen. He asked about the results of increased capacity funding for forensic services. One was still reading of cases where blood samples had not been taken. He said that the slides in the presentation were a wish list. The question was what had actually been done and what had the results been. What degree of improvement had been attained. There was an Inspecting Judge visiting jails but he wondered whether prosecutors were also doing that to see the conditions there. Mr Du Rand had noted that the information system faced challenges. He asked if the system operated between sectors. Lots of money had been invested by the DCS under its Administration programme on Information Technology (IT). It did not seem that there was IT value for money.

Mr Vinesh Moonoo replied that DNA was being fast-tracked. The court requested DNA reports.

Ms Kohler-Barnard referred to the FCS units, and the SAPS decision to scrap them and then reintroduce them. The Minister had said that there were going to be 176 offices. She asked if those had already been established, or whether it still had to be done. She hoped that former members would be reintroduced, seeing that they had experience of a specialised field.

Brigadier Bafana Linda, Family Violence, Child Protection and Sexual Offences Unit, replied that the reintroduction of FCS had commenced in June. There had been 66 prior to restructuring. There were 176 units with 1 997 members. He agreed that members had to have specialised skills, to be effective. They had to work in a specialised environment of intervention for children and abused people. For a strong case in court, good statements were needed. Members intervened directly to obtain such statements. If necessary, they would go back and re-obtain statements. Members worked directly with the victims. One person was placed on a case and took it through. Old members employed there before, had been invited to resume their positions.

The Chairperson asked what happened when investigating officers were on leave. At Kliptown, in his constituency, a person had his case thrown out because the investigating officer was found to be on one year leave. In Sophiatown and Westbury, half of the druglords were known to everyone. Yet when there were reports about them, the police did not respond because “the police were on the payroll”. He knew of instances where people had been arrested, had made a single phone call, and were set free. At Florida, it had been impossible to get hold of the police investigating officer after five, he was at home without a cellphone. There was the challenge of resourcing detectives. Investigating officers also abused their power. Their training had to explain to them that they were servants of the people. In his area people would often decide to deal with crime on their own, for that very reason.

Mr Moonoo answered that when an investigating officer went on leave for more than three days, dockets had to be transferred. That was checked for during inspections. About the situation in Sophiatown and Westbury, he said that information about drugs could be supplied to Crimestop call centres. If such information came from the community, it was followed up to the local police station. Detectives previously often did not have cellphones, but it had been decided that they had to have cellphones and laptops. A quarterly audit on resources was highlighted during inspections, but that was not enough. People were afraid to report on abuse of power, but if they did so, steps were taken. People from the Service had in fact been arrested.

Ms Chikunga noted that the new police curriculum would include one year theory and one year practical. Detective training would be included. The current curriculum only included two weeks detective training. There were currently 4000 constables without detective training.

Ms Kohler-Barnard said that representatives from the Department of Health should be present. Blood samples were delayed in their laboratories.

The Chairperson asked about an IT system database. There was a lack of information from the DCS. He asked if prosecutors went to look at prison conditions, and the new Bill on fingerprinting.

Mr Du Rand replied that there were IT challenges across the cluster. It was a long term project. The DCS and SAPS needed upgrading. The Minister of Corrections did not provide necessary information. Police stations had to be upgraded from older systems. There had to be accurate statistics on overcrowding. Prosecutors were taken to visit prisons. There was engagement with the SAPS and Home Affairs about the Fingerprint Bill. The need for more magistrates and judges would be discussed in the JCPS cluster. There had to be interventions for cellphones and IT across the cluster. There was attention to corruption in the JCPS cluster. Numbers had to be made available to phone about the activities of druglords.

Mr Bradley Smith, Deputy Director of Public Prosecutions, National Prosecuting Authority (NPA), added that the NPA was concerned about delays around ATDs. New detectives were making a minimal contribution. Junior detectives could free seniors for more serious cases. Regarding the speedily solved case that Mr Abram had referred to, he noted that the late Mr Gambela had been missing for a long time, hence there had been a long review of the case. The accused had pleaded guilty, which speeded up the case. He said that delays on account of blood and breath tests for alcohol, were not contributing to overcrowding. Specialised units brought efficiency; there were care centres where rape victims could go, for instance. There were sexual offences courts. Staff were rotated because there were huge challenges on them. Prosecuting attorneys had visited a number of centres, including Umtata, Johannesburg and Potchefstroom.

The Chairperson drew attention to court proceedings. Private lawyers had a role to play. In his area, people would phone to say that the lawyer was not present to handle their case, the lawyer and prosecutor had agreed between them to have the case postponed, especially in the smaller courts. Someone then had to go back to prison without his case being heard.

Ms Chikunga said that there had to be monitoring of courts staying open late. To adjourn, postpone or remand was the norm. There were no sanctions, and consequences were not calculated. The question was why complainants were called in when it was known that a case would not be heard. She referred to magistrates on payrolls of druglords. It was certainly so that druglords obtained bail quickly. She asked if this could be monitored.

Mr Abram opined that there had been no effort made to bring in civil society and specialists like sociologists. Something was gravely wrong. Planning could be effective, but there had to be a change of the psyche. Crimes were committed openly, and with impunity. Instant fortunes were made from crime and drugs. Investigating officers had to understand why crimes were committed. The JCPS cluster had to come up with suggestions about what other sectors had to do. Concerning unaffordable bail, he said that there had to be alternatives like a guarantee given by an employer.

Ms Nyanda asked about the success rate of Legal Aid SA. She asked if magistrates were visiting centres. She said that a white man’s case could be attended to at night, but not so for a black man. She asked about police vetting to combat dishonesty.

Mr Bradley Smith replied that magistrates were no longer allowed to sit at night.

Ms Ngwenya asked for reasons why cases of low profile persons took longer. She asked for clarity about the number of remand detention centres.

Mr Bradley Smith replied that it was not always so. The fact was that media attention placed more pressure on the police and courts to perform speedily.

Mr Willie Damons, Deputy Commissioner, Remand and Security, DCS, replied that Cabinet had decided about the remand detention system. The DCS had first stated that 10 centres would be refurbished, but then Umtata had been added. Centres selected were Pollsmoor; St Albans; Durban; Pietermaritzburg; Potchefstroom; Johannesburg; Pretoria; Boksburg; Modder B; Grootvlei and Umtata. 50% of Remand Detainees were in those centres. Sentenced offenders would be migrated out. The Department of Public Works (DPW) was the service provider for refurbishment. Consultants had been appointed to determine costs. An initial estimate of R4 billion was deemed too high. Potchefstroom, Johannesburg and Pretoria were singled out for early attention. A threshold amount of R300 million was decided upon. If costs exceeded that, there had to be a feasibility study. The project was handed over to the DPW for a feasibility study by a project team. There had to be consultation with the Treasury about the DCS fixed building allocation that had to be increased.

The Chairperson told Mr Damons that the process had commenced 7 or 8 years ago. The question was when it would be up and running. The DCS had to provide a deadline, so that the DCS and the DPW could be held to it. Delays as seen at Kimberley were not acceptable.

Mr Max noted that it had become easy for black people to progress through the police ranks. The question was how to motivate people to do their best, to resist corruption and to develop skills. He suggested that five year contracts for police managers should be considered. He was of the opinion that permanent appointments made people lazy.

Mr Ndlovu asked how the absence of court staff should be interpreted by people who had travelled to court.

Mr Du Rand replied that staff absences was sometimes unavoidable, as when people became ill. It did not mean that one could go free. It was inconvenient, seeing that witnesses were there. There had to be co-ordination between role players. The court roll had to be updated to avoid disruption. Cases were sometimes postponed because dockets could not be found. That did not mean that the accused could go free. Dockets could be scanned and recreated, and the same applied to misplaced charge sheets. There was the challenge of court records corrupted by the system. Delays were caused when the accused failed to appear in court. A warrant of arrest could be issued, but that caused delay. Community participation in crime prevention was important. Role players like the Community Safety Forum had to be brought in. He conceded that there could be truth in the allegation that druglords owned courts. There was a commitment to resist corruption across the JCPS cluster. Monitoring systems would be put in place. Vetting was part of the anti-corruption drive. Court norms were a challenge. The judiciary was independent, and directed cases. The Chief Justice had been asked to help deal with standards and norms. In the Western Cape, if a court sat for less than three hours per day, it had to be explained.

Mr Bradley Smith added that if a magistrate were on someone’s payroll, it would become clear from the way he handled cases. Police could act against magistrates suspected of corruption.

Mr Hundermark responded that it was unethical for a lawyer not to arrive at a sitting. It could be reported to the Law Society. All practitioners were members of the Law Society. Delays often occurred when there were multiple accused, which made a case complex. Postponement rightly had to be reviewed by magistrates. Presiding officers had to take control of their courts and court records. Concerning unaffordable bail, he said that alternatives like reporting to the police station, could be looked at. The court ultimately decided about bail.

The Chairperson remarked that public perceptions of Legal Aid SA were important. It was perceived as being embedded in government. He asked how it was marketed as an entity that could render fair assistance.

Mr Hundermark replied that all practitioners were members of law societies. If service rendered was inferior, or people were being forced to plead guilty or if there was collusion with the state, they could be struck from the roll. He conceded that there were still remnants of the perception that one had to plead guilty. He said that practitioners could start by making their services known in their communities. Clients had to know their options. Plea bargaining could not be forced.

Mr Bradley Smith added that witnesses who had been unnecessarily called, had to receive an apology and have circumstances explained to them. Concerning crime prevention, he said that the JCPS cluster worked with Social Development. Cases were sometimes sent back as not court ready. Prosecutors had ideas of their own. There had to be screening protocols and supervision. Dockets reflected the particulars of a case, police could put more work into that. The investigating officer could well be more experienced than the prosecutor.

The Chairperson asked about the accusation that police were reluctant to consider alternatives to arrest.

Mr Moonoo answered that guidelines for arrest were not always adhered to. Persons arrested for drunken driving only appeared in court 60 days after arrest, when the results of tests were available. People were held in custody after arrest if it was decided that there was a risk of further crimes.

Ms Nyanda asked about the implications of the Pretoria Court that had burned down.

Mr Du Rand replied that the disaster had been investigated. There were still unscathed records. Damage had been to the old section that dealt with civil and district matters. The new section, that housed regional courts and dealt with serious crimes, had not been damaged.

The Chairperson concluded that the JCPS cluster was a challenging one. Some wanted the police to make more arrests, others wanted fewer. Some wanted stricter sentences, others sought alternatives to sentencing. He said that the Police needed interventions to secure data integrity in the DCS.

The meeting was adjourned.