Minister on Correctional Matters Amendment Bill [B41-2010], Enhanced Parole System & Remand Detention

Meeting report

Opening remarks

The Chairperson welcomed the Minister Nosiviwe Mapusa-Nqakula and her team, National Commissioner Tom Moyane and his delegation, and members of the Judicial Inspectorate. He said that the purpose of the meeting was for the Committee to familarise itself with the intended amendments to the existing Correctional Service legislation and to start the process of public comment. The intention was to attend to it as the first priority in 2011 and no debate was to be entered at this stage.

Address by the Minister, Nosiviwe Mapusa-Nqakula
The Minister said she was there to present the Bill that was before the Committee and also the White Paper on Remand Detention. She explained the delay in processing the Medical Parole Amendment. The processes had been completed in February and it had been hoped that it would be implemented in 2010. However, it had to be delayed as the White Paper on Remand Detention was still being completed and it had been determined that some elements of remand detention in the Act needed be amended as well. She referred the meeting to the decision taken at a Cabinet Legotla in January 2006 that mandated DCS to produce a white paper on remand detention. That process had only started in September 2009. An interdepartmental task team had been set up with the South African Police (SAPS), the National Intelligence Agency (NIA), the Department of Justice and DCS and they were responsible for the production of the work on remand detention. She said that the whole area of remand detention had faced serious challenges and it was necessary to ensure that there was a regulatory framework that would give guidance on the DCS's responsibilities to remand detainees. She had hoped to see the Amendment Bill passed before the parliamentary year end but that had not been possible.

The Minister reiterated that the purpose of the Bill was to amend the definition of medical parole in the existing legislation. The Bill also sought to strengthen the entire parole system and in the process repeal the incarceration framework. The third aspect were the amendments on remand detention. She said that the National Commissioner and his team, some of whom were responsible for the drafting of the white paper, would be able to elaborate on all aspects of the white paper. She introduced the critical areas addressed in the white paper starting with the classification of inmates as they came into centres. Secondly, they were considering providing remand detainees with uniforms which would be clearly distinct from convicted inmates. This was to accommodate persons from destitute circumstances and for security reasons, to minimise the possibility of escape. She referred to the escape of 41 people from custody in Harrismith who were all in civilian clothes and she felt this escape was facilitated by the fact that they were not in uniform.

They were also pushing for a limit to the incarceration of inmates while they were still in remand. People had been detained for periods of three to seven years with the majority being on remand for three years. The support of the public was to be sought to have a clear stipulation that inmates be on remand for twenty four months and no more. This would place pressure on all stakeholders, SAPS, the Department of Justice and DCS to ensure that the conclusion of cases was done with speed. She acknowledged that it would be difficult to hold public hearings as Parliament was set to rise on the 17 November and she appealed to members to prioritise it in their programme for 2011 because of its sensitivity. She said members were aware of the many challenges in correctional facilities such as the scores of people who were very sick and incapacitated and who should be provided with the opportunity to appear before the parole board to be considered for medical parole.

Correctional Matters Amendment Bill: briefing
Mr Tom Moyane, the National Commissioner, allowed members of his delegation to introduce themselves and proceeded with the presentation. He said that the Bill sought to improve the administration of three key areas of corrections. These were to strengthen the parole system in general, to provide for a new medical parole system and to make further provision for the management of remand detainees.

The Bill proposed the repeal of all provisions referring to the development of an incarceration framework and instead addressed shortcomings with the functioning of the parole system within the framework of the existing Act. The draft white paper had identified that the incarceration framework which was a provision of the Correctional Services Amendment Act of 2008 was problematic. It was reasoned that the development of a third parole system was highly undesirable and unworkable. Questions had been raised as to the legal standing of the process set out for the adoption of the proposed incarceration framework. It was concluded that no version of an incarceration framework could practically achieve the desired outcomes as stipulated.

Outlining the new medical parole system, Mr Moyane said that section 79 of the Act limited the granting of medical parole to sentenced offenders that were in the final phase of a terminal illness. Medical practitioners were reluctant to recommend medical parole within this limited definition. This reluctance could also be attributed to media and societal pressures associated with such recommendations, since 60% of medical parolees did not pass away after their release. The Department recorded a high number of natural deaths each year as many seriously ill and incapacitated inmates did not qualify for medical parole. Caring for the healthcare needs of these inmates placed serious pressure on the already limited financial and human resources of the Department. The new conditions balanced the medical condition of the inmate against the risk posed to society should they be placed on medical parole. The risk of re-offending had to be low and appropriate arrangements had to be made for the supervision, care and treatment of the inmate on release. Medical parole was also not to be cancelled because of a change in an offender's medical status. The usual provisions on the cancellation of parole were applicable such as the violation of community corrections.

Mr Moyane stated that the draft white paper was consequent to the decision by Cabinet to improve the management of what were known as awaiting trial prisoners. He noted that the Criminal Procedure Act, No. 51 of 1977 and the Extradition Act, No. 67 of 1962 rendered the concepts awaiting trial detainees, pre-trial detainees and unsentenced offenders inappropriate. The proper definition of the function was remand detention and remand detainees. Referring to the chart provided (see presentation) he said that the mandate placed the responsibility for remand detention with the DCS, SAPS, Department of Social Development (DSD) in the case of children in trouble with the law, and the Department of Health (DoH) in respect of remand detainees with health challenges. The draft white paper thus sought to address the management of remand detention across the relevant departments.

The existing framework remained valid except for material gaps and misalignments. He said that the first areas needing improvement were the admission process which entailed classification of detainees for logistical purposes and in terms of risk management to enable detention of high risk persons in designated high risk facilities. He referred to the Harrismith incident raised by the Minister and said that most of them had been high profile criminals who should not have been detained at that facility. The provision of distinct clothing was also proposed and he reiterated the point raised by the Minister that if the Harrismith escapees had been in uniform they would have been detected. A further proposal was for the surrender of remand detainees to SAPS for further investigation of their cases for a period of seven days which could be extended on proper motivation.

On the time limit proposed for remand detention, Mr Moyane said that there had been cases where remand detainees had spent seven years in detention. These extremes negated the notion that remand detention should not be punitive and that it should be fair and reasonable. Consequent to this, the proposal was made that two years should be the maximum period that a person could remain in remand detention and the extension of this period would be subject to strict conditions.

With regard to the matter of child detainees often raised by the Committee, Mr Moyane said that the Child Justice Act provided redress for children in police cells and it was proposed that this be extended to all children in remand facilities and also child and youth centres. Other improvements proposed were the management of information and remand detainees would be provided with awareness programmes against crime. They would also be eligible for release for medical reasons and vulnerable groups such as the aged and persons with disabilities would be protected from possible abuse.
 
Discussion
The Chairperson commented that he had no doubt that the objectives of the white paper and the Bill would be supported by the Committee as the problems of what was known as awaiting trial detainees, their management and the length of time for which some of them were detained had been raised by the Committee. In terms of the details and the rationale for wanting uniforms, he said the Committee would be amenable to the proposal. The Bill would be considered in depth as would be the public submissions as the process of interaction with stakeholders unfolded. He anticipated that by mid-February 2011 the Committee would have a position to take to the National Assembly. He invited comment and questions of clarity from Committee members.

Mr J Selfe (DA) said he understood why amendments were being proposed to the conditions for medical parole but he wanted clarity on the assertion that medical parole was not to be cancelled simply because of a change in an offender's medical condition. It was well known that at least one offender underwent a “miraculous recovery” and in other jurisdictions, notably Canada and the United Kingdom, people who were released on medical parole but who got better, could be re-incarcerated. If the intention was to release inmates who were suffering from a terminal disease and they got better it would appear that the condition leading to the release had disappeared and the person should be re-incarcerated to complete the sentence.

His second question related to the incarceration framework. He recalled that when the Act had been debated in 2007 and 2008, the intention had been precisely to shut down the distinction that existed between the two parole regimes, one being prior to 2004 and the one subsequent to 2004. The intention was to look at categories of the sentences between the two periods to see that everybody was treated the same for the same offence. Now DCS stated that it was impractical to do that.  What concerned him more were the number of letters he had received on the problems inmates were encountering with qualifications for parole relating to the two dispensations. He had thought that the incarceration framework was an attempt to get beyond those problems.

He commented that one of the most encouraging proposals was the risk management of remand detainees as people in different risk categories sharing the same environment was a danger. The classification should not be only in terms of the alleged crimes they had committed but also on the crimes they had previously committed. Thus if a person had been previously convicted for murder and was subsequently arrested for alleged housebreaking, both of these should be taken into consideration in the classification process.

Mr V Ndlovu (IFP) wanted clarity on the 24 months maximum period for remand detention and asked if the timeframe was sufficient. He also wanted to know if the categorisation of children in terms of age was going to be the same as that applied by the Department of Social Development.

Mr Moyane responded to the question on the improved health of persons released on medical parole. He said that once they had received the opinion of a medical practitioner advising medical parole, the Department obliged. On the rationale that an improvement in the medical condition of the medical parolee should result in re-incarceration, he said that social and environmental factors also impacted on a persons health and there were psychological benefits in being surrounded by those closest to one. It was difficult to predict when someone was going to die and if that principle was accepted, factoring in the unknown was impossible.

Ms Lirette Louw, legal advisor to the Minister, referred to the table on comparative research on medical parole in different countries and in different states of the USA and said that in the end it was a policy decision. Currently medical parole was only granted on medical grounds but now other factors had been included such as the low risk of re-offending. It was a balancing act and even if a person was terminally ill, if the risk profile was high, they might not qualify for parole. A holistic view would have been taken and re-incarceration was not a consideration.

On the incarceration framework, she said it had not been an easy decision to make and it had been made in collaboration with the National Council for Correctional Services (NCCS) as it and the National Commissioner had been tasked to develop the incarceration framework. There had been an attempt to create two systems for lifers one before 2004 and one after 2004 where 20 years was the minimum sentence before 2004 and 25 years after 2004. This had been overtaken by the judgement of the Constitutional Court in September 2010 in the van Vuuren case where the court had ruled that people had to be treated in accordance with the least severe punishment applicable at the point of sentencing. If the incarceration framework had gone ahead with specific categories of crimes and equalised parole conditions, uniformity would still not have been possible as persons had to be treated in accordance to the conditions applicable at their sentencing. Going forward, the decision was to stick to the current parole policy framework in section 73 of the Act which implied that there would be only two parole systems applicable in South Africa as was the case in many other countries.

Mr Loyiso Jafta, DCS spokesperson, commented that risk profiling methodology should always be revised every two to three years to take into consideration advances in the IT industry which could enable more sophisticated crime. He noted that there had to be further research and development on the impact of technology and the risk profiling methodology that the Department employed.

On the timeframe of 24 months for remand detention, Mr Jafta said they had consulted extensively with SAPS, the Departments of Justice and Social Development and the National Prosecuting Authority and there was consensus that the timeframe was reasonable. The DCS officials at remand centres would update the investigating officers and prosecutors on the time elapsed to expedite the due process of the law. Alerts would be sent out at 12 months and 18 months and if there were problems the police and the prosecution could motivate in a court of law for the extension of remand detention for a particular remand detainee. If there was no persuasive motivation to continue the incarceration, then they should be considered for release. This release would be on the same conditions pertaining to release of persons on bail. Thus it was conditional and the case was not closed but the person was merely removed from the remand centre.

On the question raised on the detention of children, Mr Jafta said that the law permitted the DCS to hold children in remand detention in terms of the Child Justice Act (CJA) and there had to be proper coordination in respect to standards between the Department, SAPS and the Department of Social Development. Redress mechanisms were provided for by Section 28(2) of the CJA Act, explicitly for children in police cells and the proposal was that this provision had to be evenly available to all children in detention including children managed by a private contractor for the state.

Mr Moyane said that the rationale for the 24 month limit on remand detention related to the history of  people detained for long periods awaiting trial and the costs incurred by the Department. Detaining people for long periods meant clothing and feeding them and the Department was carrying a cost that was unjustifiable as they should be dealing with people who had been sentenced to account for the budget they received. He reiterated that they had consulted extensively and that there was consensus that 24 months was a reasonable period.

The Chairperson noted that the Committee's point of view was that when a person was arrested there should be sufficient evidence to take the person to court and there had been talk of court readiness and this had to be managed downwards. He said that Mr Selfe had also raised a valid point on alleged current crime and past crimes committed and these were issues the Committee would look at further. The incarceration framework matter would also be examined. He was not sure that Mr Ndlovu's concerns on child detainees had been answered as he understood him to be asking if there was an alignment between the DCS and the Department of Social Development on the categorisation of children and implicitly if there was a universal definition of a child.

Mr Jafta agreed that there was agreement on the definition of a child.

Ms W Ngwenya (ANC) said she had no doubt that the Bill would be passed as the Committee had been fighting for it, especially the long periods people were in remand centres. She was concerned about SAPS and whether the 24 months timeframe would allow them to relax. The issue would be taken to the community as stated by the Chair and they would take it from there. She asked if the Department was ready in respect of the uniforms they proposed for remand detainees or if they were going to have service providers or would inmates make them in their workshops.

Mr L Max (DA) said that in the Bill it indicated that inmates may be detained in police cells but for a period of not more than one month unless an extension was authorised by the National Commissioner. Further in the Bill it referred to remand detainees being in the custody of SAPS for a period not exceeding seven days and that application had to be made to the National Commissioner by the SAPS for an extension after the expiry of that period. His concern was about the practicality of this and whether the National Commissioner had to sign these documents personally or if someone else could be designated to do so. He noted that under section 79 of the Bill, which dealt with medical parole, it stated that the Minister had to make regulations regarding the processes and procedures to follow in the consideration and administration of medical parole. He asked whether there were timeframes for the Minister's response.

The Chairperson was concerned about the release of remand detainees into the custody of the police for seven days. He said that when the Committee had raised the problem of who was responsible for remand detainees, SAPS had been discounted as they were not trained to handle detainees and the cells were not suitably furnished. He was concerned about where detainees would sleep, what would happen to the individual in those seven days and he wanted clarity on the practical and other implications of remand detainees being in the custody of SAPS.

Mr Jafta responded that a detainee was surrendered to the police explicitly to enable the police to further their investigation. The only other time when DCS permitted the surrender of a remand detainees to the police and prosecutor was for further charges that were not related to why they were in remand detention in the first place. This  was an unpredictable scenario due to the nature of the crimes allegedly committed and the fact that the crimes could have taken place in different locations especially in the case of organised crime. The reasonable thing was for the continuation of the investigation by the investigating officer for the period of seven days and this could also entail court appearances. All the norms regarding remand detention would apply and the investigating officer would be responsible for the remand detainee. A further consideration was that the non-appearance of remand detainees in court was regarded as contempt of court and the Head of the remand centre would be liable.

Mr James Smallberger, DCS Regional Commissioner of the Western Cape, responded to the question of where the remand detainees would be incarcerated and said that normally they would be held in police cells. There were also identification parades which detainees had to attend and as crimes could have been committed throughout the country, detainees might have to be transported to other areas which might require an extension of the seven days. Commenting on the regulatory framework, he said it was an improvement on the open-ended current system which operated without timeframes and parameters.

Mr Carel Paxton, Director for Code Enforcement, DCS, said that the first period of a month raised by Mr Max, referred to where there was no correctional centre within a magisterial district. Responding to the question of the need for authorisation from the National Commissioner, he said that it was the normal way of drafting a Bill and a provision would be made for it to delegated to where it was practical for it to be exercised. On the medical parole regulations for which the Minister was responsible, he said that there was no particular timeframe. To be put into operation, that section of the Act would need regulations and the regulations would be completed soon after the promulgation of the Act.

Mr Moyane responded to the questions on uniforms stating that where it was practicable and where the material could be sourced, it would be done by offender labour in the DCS facilities. Outsourcing would happen where this could not be done. On the question of whether SAPS could do their work within the 24 month timeframe, it would be a process between the police and the prosecutors to speed up dealing with the cases. The financial discussions with SAPS and the Department of Justice would spearhead the process. It had cost implications to have detainees on remand for long periods and it also led to overcrowding and the perception that DCS was not doing their job. Remand detainees constituted 30 to 35 % of the Department's detainees and if the wheels of justice could move faster DCS could deal with this problem effectively.

Ms M Nyanda (ANC) wanted to know whether the uniforms were still being done by inmates at the centre in Witbank or if there were new centres.

Mr Smallberger replied that uniform manufacture was distributed countrywide and each province and region had textile workshops and the same principle would be applicable for uniforms for remand detainees as it was more practical.

The Chairperson said the Department would have to come up with a strong argument for the surrender of remand detainees into police custody for the seven day period. He was concerned that there would be no control of where the person would be sleeping and he noted that Cabinet had taken a decision that DCS would be responsible for remand detainees and the white paper indicated how they should be treated. It was now being asked to hand remand detainees to SAPS without any guarantees that the minimum standards of humane detention would be adhered to while they were in police custody. The community would take issue with this and the Committee would not want to face this without being clear about the matter. The Committee would be advertising for public comment in the newspaper shortly and when members returned in January they would have a summarised document of the public submissions. They would then know which stakeholders to engage with and the engagement with the DCS would continue.

Status update on the appointment of new parole chairpersons; the outcome of the audit of those who qualify for parole; Correctional Sentence Plans
Ms Sharon Kunene, Deputy Commissioner for Social Reintegration, DCS, said that the process of approving the appointments of the new parole chairpersons was currently with the Minister for finalisation. The current chairpersons of correctional supervision and parole boards were appointed on a month to month basis and this had been extended to 17 December 2010.

No report was available yet on the audit of those who qualify for parole which included psychiatric patients, elderly offenders, disabled and ill offenders. The ministerially appointed task team was still busy with the audit. Another audit was being conducted on lifers who would be affected by the Constitutional Court ruling in the van Vuuren case.

The DCS strategic plan had identified the necessity of reducing the backlog of 50 933 in Correctional Sentence Plans (CSPs). The target had been set at 10% and the backlog was reduced by 8 549 during the second quarter. The Department was about to sign a Memoranda of Understanding on learnerships with the University of Pretoria and UNISA respectively. Hereby post-graduate criminology students would assist the Department in developing CSPs to reduce the backlog further. The Department was currently conducting workshops around the country in an attempt to improve compliance on the implementation of CSPs.

Discussion
The Chairperson referred to the backlogs on CSPs and said given the current statistics it would take six years to clear the backlog and there were detainees who would not have a road map for rehabilitation till they were about to be released. He said service providers had indicated their availability to run campaigns to reduce the backlog and he felt that something drastic had to be done to address the problem.

He enquired about the timeframes for appointment of chairpersons of parole boards and the audit of the lifers. A lot of the issues raised depended on a functional parole board and many phone calls were received on the review process and other matters on parole by the persons concerned. He noted that there was a lack of urgency and for example the head of each centre could supply the number of lifers they had in their centre and escalate it to the top where it could be consolidated. He could not see why the process should take more than a month. If timeframes were not indicated the Committee would set the timeframe and hold DCS to it.

Mr Gcinumzi Ntlakana, Chief of Staff for the Ministry, said that with regard to the appointment of parole chairpersons, everything had been done and they had received the submissions from the Western Cape and Gauteng and were awaiting the submissions from the other provinces. It had been suggested that for practical reasons the contracts of the existing chairpersons be extended till January. There were areas where certain weaknesses had been identified in terms of the people proposed and other candidates might have to be found. The intention had been that all the appointments would have been finalised by the end of November as December was a dead month administratively. The appointments of the chairpersons and vice-chairpersons would now be finalised by the end of January 2011 when there would be a proper hand over.

Ms Nyanda was concerned that two provinces, Limpopo and Mpumalanga, had not been reached in terms of CSP workshops by the Department.

Ms Ngwenya said that the document on the guidelines for appointment to the parole board should be made available to the Committee. She believed that the Committee should be part of the interviews and she was concerned that the Department had started the process without consulting the Committee. The Committee had to monitor the process even if the Minister had the final say on appointments. She asked the Chairperson to ensure that the members received the document on the guidelines for the appointment to the parole board before the parliamentary recess as they might be approached by the community about the parole board.

Ms B Blaai (COPE) agreed with Ms Ngwenya that the Committee should be involved in the appointment of the parole board. She asked how the Department was going to reduce the backlog in CSPs. She also wanted to know when the task team would complete the audit on those who qualified for parole.

Mr Moyane responded to the questions on the backlogs on the CSPs which he acknowledged was a serious problem as it was supposed to be the road map to rehabilitation for offenders. He said that, unfortunately, the presenter had not been privy to the mid-term strategic review which had been held in the previous week. Senior management had taken a principled decision to speed up the process of the completion of CSPs at that meeting. They had noted that the targets would not reach the intended goal and he said the Chairperson's concerns were well placed. A clear mandate had been given for this matter to be addressed despite the lack of capacity.

With respect to the guidelines for appointments to the parole board, he said he would supply the Committee with the document. He was not aware that the Committee had to be involved in the process but he would verify this. He was aware that the Committee had a busy schedule but if it was a directive it would be looked at to see how it could be achieved.
 
Mr Moyane said that he would liaise with his colleagues to establish a timeframe for the completion of the report on the audit on parole and the audit on lifers. He said that the DCS believed in timeframes and there was nothing that was open-ended.

Mr Ntlakana said that when the Minister had appointed the task team it was communicated to the Committee and the time frame had been set for the end of June /July 2010. The timeframe had been extended to the end of December as it had been realised that the report would not be completed in time - and this was the deadline for the presentation of the final report to the Minister.

The Chairperson confirmed that the speeding up of CSPs would take place in all provinces as had been queried by Ms Nyanda.

Ms Kunene said that the audit process of lifers affected by the van Vuuren ruling had started and the instructions had been sent to the regions in October. A meeting had been held with all the regions in the past week to map the way forward. At the end of November the regions would submit their reports and that would be consolidated at Head Office.

Ms Louw said that the National Commissioner had given a deadline of a week for the physical audit to be completed and the number had been confirmed already and it was about 400. The process now was to deal with individual cases and that was the bigger audit but the number crunching had been done.

The Chairperson thanked the National Commissioner and his team and the team from the Ministry.

Committee Programme
Mr Moyane requested a postponement of the meeting with the Committee scheduled for the 17 November as the senior management team would be on an international tour on benchmarking.

The Chairperson acceded to this request and the inspecting judges indicated that they would be able to meet with the Committee on their annual report on the 17 November and DCS would then meet with the Committee on the 24 November.

The Chairperson tabled the Draft Programme for the Committee for the next year and reviewed the programme for the first term. He proposed that the Committee undertake an oversight trip in 2011 and China, Australia, New York or the UK had been suggested. It was decided that the Committee secretary and researcher had to do the necessary research and present the Committee with the best option.

Ms Ngwenya indicated her approval of the draft programme and also supported the proposal of the overseas trip.

The proposed programme for 2011 was adopted unanimously by the Committee.

The meeting was adjourned.