Challenges identified by Judicial Inspectorate for Correctional Services in 2009/10

Meeting report

Briefing by the Judicial Inspectorate for Correctional Services (JICS)
Judge Deon van Zyl, Inspecting Judge, said that the JICS reported on problems all over, but received little feedback on whether its suggestions were being followed, or even received. The Portfolio Committee was the exception.

The Judge continued that the JICS had a limited mandate, and lacked powers to follow up on inspections. The JICS had no disciplinary powers, only powers of investigation. He himself did not have a judge’s power when he visited prisons. If he had those, he could deal immediately with problem situations by issuing an order. He said that the Department of Correctional Services (DCS) could take the powers of the JICS on review. The pros and cons of increased power could be reviewed, and an extension could be negotiated. The JICS had met with a Ministerial task team. At centres visited by Independent Visitors (IVs) the atmosphere was better. The JICS office was unique in the sense that the DCS paid its members, but yet the JICS was independent.

The Judge noted that there had been improvement with overcrowding. There were fewer women and children in prisons. The Occupational Specific Dispensation (OSD) and the 7 day establishment presented challenges. The 12 hour shift system did not work well, as such a shift was too long, and DCS members could not maintain concentration. Staff absenteeism had drastically increased since the system’s inception.

Prisoners were kept locked up for 23 hours per day, with one hour for exercise. No effective rehabilitation was taking place, contrary to White Paper demands. There had been little progress with the social reintegration of offenders. There was little evidence of declared intention to migrate officials from Head Office to centres. People were designated to centres in terms of the PERSAL personnel salary formula, but in fact remained in offices.

The JICS wanted post mortems and inquests performed for every death that occurred in prison. What was classified as natural death was not always natural. If an inmate had been driven to suicide by circumstances, it was not a natural death.

The South African government had signed the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) during October 2008. Ratification of OPCAT would oblige the state to set up preventative mechanisms to visit places of detention. That would constitute overlap with and duplication of the work of the JICS. The question was whether the JICS would be seen as the national preventative office in that context.

Mr Gideon Morris, JICS Director, referred to levels of overcrowding in prisons, as set out in the JICS Annual Report for 2009/10. Overcrowding had been more serious in the past, but the figure still stood at 139%. Overcrowding was a worldwide problem, but the South African figures were still among the highest in Africa. Overcrowding was due in part to unequitable distribution. The Pretoria Female Section was overcrowded, whereas that was not a case at Bavians nearby. The numbers of unsentenced female offenders and children had declined.

Mr Morris continued that the numbers of Awaiting Trial Detainees (ATDs) fluctuated, with increases over November to January, when courts did not sit regularly. The number of offenders serving long sentences had increased. The impact of long sentences on overcrowding was a delayed one, which meant that a crisis could be expected in five years. There was a lack of uniformity in the measuring of space allocated to inmates. Sometimes the number of beds were used as standard, sometimes 3,5 square metres per inmate, and sometimes 2,5. Inmates who worked outside needed less space.

Mr Morris noted that in the United States, plea bargaining was resorted to in 80% of cases. In the Western Cape, the figure stood at 2%. The National Prosecuting Authority (NPA) wanted offenders to plead guilty, but in terms of bargaining the offender had to know what was on the table. Plea bargaining had to be prosecutor driven.

Mr Morris continued that the DCS rigidly applied the norm of one hour exercise per day for inmates. The Correctional Services Act had to be amended, in that respect, to conform to constitutional demands for human dignity. The JICS had conducted structured interviews about programmes and infrastructure during prison visits. Only 10 to 15% of inmates were involved in programmes. Sentence plans could not be given effect through programmes, because of a lack of infrastructure. The situation was somewhat better in the Public/Private Partnership (PPP) centres, and youth centres. Belt tightening schemes had resulted in lack of money for training materials. There was a lack of uniformity regarding resources. One educationist could not run an entire education programme at a centre. Resources were not aligned with programmes.

Mr Umesh Raga, JICS National Manager, Legal Services, covered Chapter Three of the Annual Report dealing with the Prevention of Human Rights Violations. He presented an annexed schedule of unnatural deaths from 1 January 2009 to 31 December 2009. It was an account resulting from DCS own investigations. On the basis of the findings in the schedule, Mr Raga urged that the JICS increase its inquisitorial role. Unnatural deaths were broken down into homicide and suicide. 18 of the homicide cases involved DCS officials. In one instance, the DCS reported that a frenzy had broken out among warders. A pathologist had found signs that pointed to suffocation as the cause of death. Death had to be viewed holistically. The JICS could request deeper investigation. The South African Police Service (SAPS) was a role player, in the sense that it had to supply a docket to the NPA. An inquest magistrate would make the final decision about a death, if no charges had been laid.

Mr Raga noted that 47 investigations had not been completed. There was no information about the decisions taken. Homicides were easier to deal with than suicides. In some instances, the DCS had indicated that suicidal tendencies had been known beforehand. Negligence could be proved. Inquests had to be opened.

Mr Morris added that the DCS had found some of its own members guilty of extreme violence, but they were only given written warnings or a month’s suspension without pay. In the case of natural deaths, the DCS record keeping was bad, 6 to 7 months elapsed before a death certificate was made out, by which time there no longer was a body.

Mr Michael Prusent, JICS Regional Manager (South), commented on inmate complaints. He noted that the major role players in executing the complaints procedure, were the Independent Visitors (IVs), currently appointed by the Inspecting Judge. The Act did not define or elaborate on the meaning of “dealing with complaints”, hence all role players had to accept that the Inspectorate was a reporting body only, with no disciplinary powers in respect of officials or inmates. In terms of the Act, an independent visitor had to be appointed for each centre. Transfers were the main complaint among inmates. The Inspecting Judge also conducted visits to centres, which had resulted in a list of findings and recommendations, set out in the Annual Report.

Ms Bongekile Nene, Independent Visitor, said that the challenge facing Independent Visitors was that their mandate to serve was perceived as a threat by officials at centres. DCS members had to be encouraged to take minor complaints about things like toilet paper, seriously. Inmates would complain about broken windows, and officials would reply that inmates themselves had broken them. Regardless of who was responsible, the fact remained that it was winter. ATDs were not there long enough to be held responsible for damage. Independent Visitors tried to forge ahead, in spite of challenges. Officials could be strenuous to deal with. They had to be encouraged to treat inmates humanely, even if that was difficult.

Ms Martha Kekana, Independent Visitor, said that other challenges included the lack of discretion of Heads of Centres, and the JICS. Inmates injured in police vehicles on their way back from court, had rightly to be taken back by the police, but that often did not happen. Ablution systems had in the past been fixed by inmates themselves, but that no longer happened. When Independent Visitors presented inmate complaints, the buck was passed. The DCS would offer the excuse of belt tightening measures, or would blame the Department of Public Works (DPW). In some instances, 80 inmates were kept in cells designed for 38 people. Beds were tied together to accommodate 4 inmates. The JICS had to have the power to act.

Mr Morris added that many systems for community involvement did not work. Independent Visitors were at the turning point. Experienced Independent Visitors withdrew because their credibility in the community was undermined by the lack of power to deal with complaints.

Mr Adam Carelse, Regional Manager (North), dealt with community involvement. He noted that various NGOs were involved in training and rehabilitation programmes for inmates. There was a lack of norms and standards for their involvement. The Inspectorate was in full support of such programmes, and other forms of community involvement. The DCS could not drive rehabilitation. The Act provided for the establishment of Visitors Committees for particular areas. Visitors Committees sensitised the community. Independent Visitors were seconded by the community. The JICS involved other role players like the Correctional Services Portfolio Committee and the NPA.

Ms Kekana, Independent Visitor, said that the JICS needed the help of NGOs such as NICRO. There were no social workers for ATDs. Some of them were held for seven years, and could not participate in rehabilitation programmes, which were only for sentenced offenders. Legislation for ATDs was needed.

Ms Nene, Independent Visitor, added that a decision had been taken in the previous year to explain the JICS mandate and office to the community. People lacked knowledge of the procedures to follow. Families were encouraged to visit inmates. The JICS need additional funds.

Mr Morris referred to the consequences of ratifying OPCAT. The Portfolio Committee had been asked to get involved. There were dangers of duplication.

Discussion
The Chairperson remarked that it had been a depressing account of reigning conditions. Issues highlighted had to be taken head on. He asked if the Ministry had responded to the JICS report. He asked why the massive and continuous assault on inmates described on page 60 of the Annual Report, had not been classified as torture.

The Inspecting Judge replied that copies of the Annual Report had been sent to the Minister. A meeting with the Minister or Deputy Minister would be welcomed. The new Deputy had been met with, but with no success. The Judge agreed that it did in fact qualify as torture. It could be classified as such in the future. Inmates were assaulted on a regular basis. Inmates were punished by the sentence they received, there was no need for further punishment.

Mr J Selfe (DA) asked the Judge what statutory changes would be needed to strengthen the independence of the JICS. He asked if the Correctional Services Act would have to be changed in order to grant powers to intervene.

The Judge replied that the Inspectorate looked to the Portfolio Committee for guidance. The Inspectorate was restricted by a limited mandate, and had no powers to follow up. The Portfolio Committee could enquire of the Minister what had been done. The JICS could assist in the drafting of amendments. The JICS still used the DCS e-mail address. There was one director and officers and the JICS was strapped for cash. If there was to be more detention by police, more strength would be required.

Mr Selfe asked if the Inspectorate had the internal capacity to account to the Auditor General as a wholly independent body.

The Judge responded that the Inspectorate administered its own budget.

Mr Morris added that the Inspectorate made its own payments and did its own administration.

Mr Selfe asked how it was possible that an inmate could have hanged himself at a time as busy as 16h30 in the Durban Westville Centre. He asked how inmates managed to set fire to themselves.

The Judge answered that suicides were preventable. It literally occurred in passages, because of carelessness. Staff were often not on duty. There had been the case of Angelique Sylvia, who had told staff that she was going to commit suicide, and was not deterred. Psychologists and social workers were needed to assist, and there was a dearth of such people. Every large centre needed psychologists.

Mr V Ndlovu (IFP) asked about overcrowding. He asked if inmates injured on the way back from court, were taken back by the police. He asked if there had been recommendations made to the Ministry about the shift system.

The Judge replied that overcrowding had reached crisis proportions in 19 of the 239 centres. Inmates were transported in police trucks that were often driven dangerously. No one was called to account. Vehicles were overcrowded and the SAPS had to be liable. Vehicles had properly to be seen as extensions of DCS custody, and the DCS had to check for overcrowding in them. Outside hospitals were also seen as extensions of DCS custody, and the JICS could visit there. The JICS had not been asked for an opinion about the shift system. The position of the Inspectorate was that a 12 hour shift was too long to maintain concentration.

Mr Morris added that in terms of the PERSAL system, people migrated on paper for higher pay at the centres, but they remained in their offices. Absentee rates were high, there was 30- to 40% staff absence on any given day.

Ms W Ngwenya (ANC) asked how appeal complaints related to a sentence was relevant to the Inspecting Judge. She remarked that the report was silent on psychologists and social workers. She asked about unresolved complaints.

The Judge responded that unresolved complaints came to the JICS offices, and attempts were made to get the DCS involved. The majority of complaints were resolved by Independent Visitors.

Ms Ngwenya asked about overspending.

Mr Morris replied that the JICS had asked for a budget of R23 million, and had received R19 million. There had not been overspending.

Mr L Max (DA) remarked that the JICS had come up with damning evidence. He opined that the JICS recommendations had to be incorporated into the DCS turnaround strategy. The Portfolio Committee had to demand feedback from the DCS. He was convinced that when the circumstances around a suicide were questionable, it indicated collusion between inmate and official. Officials might have been persuaded to look the other way. He stressed the importance of autopsies. The problem was that poor families of inmates had to hire a doctor for that. He said that OPCAT would duplicate 80- or 90% of the work done by the JICS. It would be better to extend JICS powers. There had to be consequences for DCS members guilty of misconduct. The DCS did not care about death certificates, and could not act as a watchdog body over the police. The DCS had to commit itself to time frames for responses to challenges. He referred to the lack of enforcement powers of the JICS. There had been lobbying among organisations in respect of the minimum sentence requirements. He asked about inmate labour.

The Judge replied that he had met with President Mbeki about the need to reconsider minimum sentencing. Compulsory sentences resembled hanging in the old days. He agreed that autopsies of suicides where circumstances were suspicious, were essential. The JICS wanted every death investigated, to establish if it had been preventable. Someone had to account.

The Judge continued that inmate work was not required to be hard labour, according to the Act. Section 40 of the Act required of the DCS to provide work for a normal working day. It was an injunction. Section 41 required that the offender had to be furnished with skills for reintegration into society. Although he was a judge, he would have been willing as a prisoner to mow lawns, simply for fresh air and exercise. With reference to OPCAT, he said that the JICS was already in the process of extending its own powers.

Ms M Nyanda (ANC) asked what the Judiciary was doing about four inmates sleeping in one bed. She asked who had suffocated the inmate at Emboweni, and why only PPP centres had programmes running. She said that an inmate had told the Committee during an oversight visit that he had been refused admission to rehabilitation.

The Judge responded that the Inspectorate had complained about bed sharing, but there had been no response. In one instance a man had fallen from the top of a three bunk bed, broken his neck and died. He said that he wished he knew who had suffocated the inmate. The perpetrator was probably dead himself by that time. Inquisitorial investigations were needed. Internal investigations were superficial.

Mr M Cele (ANC) remarked that the Portfolio Committee had to interrogate the shift system with the DCS and the unions.

Ms Ngwenya said that she agreed with Mr Cele on that matter. She told Ms Kekana that the Independent Visitors did not share with the Portfolio Committee, and had not been visible during Committee oversight visits. The Correctional Matters Amendment Bill currently before Parliament would limit the time that an offender could be held as a Remand Detainee, to 24 months. She asked if that would be a good thing.

Ms Kekana responded that Independent Visitors were in fact eager to interact with the Portfolio Committee. Independent Visitors wanted to communicate with the Committee. She asked that the Committee notify Independent Visitors when they visited centres. The DCS did not notify them of other visitors present at centres. She could be in another part of a centre and would not be informed of a Portfolio Committee visit. In Johannesburg there had been attempts to change that. Independent visitors were not received well at the centres. Sometimes they were called names. She said that she refused to be diluted by the DCS. Recognition of the JICS had to be instilled into the training of officials. As things stood, officials did not know whom the Independent Visitors were. She said that the previous Portfolio Committee had lent valuable support to the Independent Visitors. She had interacted with the previous Chairperson, and could approach him with a list of challenges experienced.

Ms Kekana said that the SAPS did not take pains to establish whether an arrested person was linked to a crime. She referred to a case where a young man visited his brother, and during his visit the brother killed someone. The Police took him into custody along with the brother, without evidence that he could be linked to the killing. She had interacted with the father. The mother drank, and could not be approached. She asked him to send some money for soap.

The Judge added that although Independent Visitors were usually appointed only for 3 years to avoid institutionalisation, Ms Kekana had served for ten years, and was the most experienced and skilled Independent Visitor. He wished to thank her for outstanding work done.

He referred to a suicide that had occurred while the night duty official had been absent. There was a general lack of supervision in centres.

The Judge said that arresting people for probably being no more than curious onlookers, placed the onus on them to disprove guilt. That ran contrary to the legal principle that one is innocent until proved guilty.

The Judge referred to a situation at Thohoyandou, were unsentenced girls, aged 18 to 21 had been kept in a converted storeroom. The heat was unbearable, and girls removed their clothing, with curious male onlookers in the vicinity. The Judge had expressed his disgust, and asked that the girls be released on bail. Heads of Centre could call for reconsideration of bail. A letter had been sent to the Minister in that regard, but there had been no response from the DCS.

Mr Morris concluded the JICS responses by noting that Independent Visitors operated as independent contractors. They had to go in to get paid. Performance was measured against standards. One got paid for what one did. There were audit functions and control measures.

The Chairperson resolved that the Committee write to the Department of Justice about OPCAT duplication. He proposed that during the Portfolio Committee meeting with the DCS and the Department of Public Works the following week, an hour be set aside to hear responses from the departments to the JICS Annual Report. 

The Chairperson adjourned the meeting.