Correctional Matters Amendment Bill [B41-2010]: Further deliberations

Meeting report

Correctional Matters Amendment Bill (the Bill): proposed amendments: Department of Correctional Services presentation
Ms Lirette Louw, Special Advisor, Department of Correctional Services, continued with her presentation of the revisions that the Department of Correctional Services (DCS or the Department) was proposing to the Correctional Matters Amendment Bill (the Bill). She tabled and explained the matters, clause by clause, beginning from Clause 12

Clause 12
This clause amended Section 73 of the Correctional Services Act (the Act), which provided for the framework for parole calculations. The 2008 Amendment Act had intended to incorporate an incarceration framework, and because Sections 48 and 49 were now to be repealed, Section 73 also now needed to be amended to incorporate the terminology introduced by the 2008 Act. This clause would also delete obsolete sentences, such as imprisonment for corrective training and prevention of crime.

The Chairperson asked whether the DCS was replacing Section 73.

Mr J Selfe (DA) noted that Section 73 had been amended but this particular amendment was not promulgated. Effectively, the DCS was therefore changing the 1998 Act.

Ms Louw said the parole policy of the DCS was contained in Section 73. Section 73 was supposed to be repealed by the 2008 amendments, but it had been realised that if this was done, then the DCS would have had systems applying to those sentenced before 1 October 2004, and those sentenced after 1 October 2004. Although the section, never repealed in fact, was to be retained, DCS had decided to change the terminology. Subsection (5) was re-worded to make it much simpler and to clarify the existing position. This clarity was set out in subclause (6). She pointed out that this made reference to cumulative sentences of more than 24 months, but the proposed amendment was suggesting a change to the period.

The Chairperson asked whether the provision meant that a person who had finished his sentence could be kept incarcerated because he/she had an infectious disease.

Mr V Ndlovu (IFP) asked what the phrase “temporarily detained” meant.

The Chairperson responded that if an inmate should have left the facility, but was found by a medical practitioner to have an infectious disease that could endanger his community or family, he would not leave on due date.

Mr Ndlovu asked whether the temporary incarceration would be in a hospital, and whether the inmate had rights.

Ms W Ngwenya (ANC) thought that the provision was not helpful, particularly given the problem of overcrowding. She added that the DCS was not supposed to act as a hospital. This was the responsibility of the health department and the social worker.

Ms B Blaai (COPE) agreed that there was no need to keep anyone incarcerated if she or he had served the sentence.

Mr S Abram (ANC) was bothered by the fact that a person could be temporarily detained until a medical practitioner had authorised the release of that person. Mr Abram said that if there was any provision in any other legislation that authorised the quarantining, then the inmate had to be quarantined in an institution other than the DCS.

Mr L Max (DA) noted that the section was trying to strike a balance between the infringement of human rights and the public interest. DCS would have to explain the provision.

Mr M Cele (ANC) felt that the DCS was taking over the job of the Department of Health. He too called for an explanation how DCS would be able to keep the person incarcerated after the sentence had been served, against that person’s will.

The Chairperson said that the DCS would run the danger of converting itself into a welfare institution. DCS did not have the capacity to quarantine people. DCS was seemingly trying to protect the family and community, yet was endangering the correctional centre community. He agreed that such centres were not the best places to keep those in quarantine.

Ms Louw stated that it was not DCS who made the decision to quarantine inmates, but a medical officer, who made this decision by following the profession’s guidelines. If that medical practitioner made a wrong decision, then the DCS would be liable. This provision applied to people whose sentences had expired, not those who were not eligible for parole or medical parole. DCS could add in a provision that stated explicitly where the quarantined inmates would stay. She said that Section 12 of the Act made it clear that the DCS was responsible for the health care of inmates. She further stressed that inmates were being taken to private hospitals, and not public hospitals. Lastly she pointed out that every person had a right to freedom but no right was absolute.

The Chairperson stressed that the Committee would not accept this provision, because the problem was one of health, which did not belong with the DCS. If the family of the former inmate could not look after him or her, then the Department of Social Development could not look after that person.

Mr Selfe agreed that the Chairperson had raised very important points. He thought that the Department of Health should appear before the Committee.

Mr Max noted that it was a matter of striking a balance, especially in light of Section 12 which said it was the responsibility of the DCS.

Ms Blaai reiterated that this should not be seen as the responsibility of DCS. The Cluster should be dealing with such issues.

Mr Abram said that the South African Police Service (SAPS) and the Department of Social Development (DSD) should be briefing the Committee. He asked what would happen if the majority of people in a correctional facility contracted an infectious disease. He also asked whether it was correct that a person with a mental problem be kept in a correctional facility.

The Chairperson said that the DCS should consider the clause in light of the Constitution, and also in light of the overcrowding in the correctional facilities.

Ms Louw responded that provision was intended for the protection of an inmate and society. She added that she would look further into how the DCS intended to deal with such people.

Mr Loyiso Jafta, Representative of Task Team, Department of Correctional Services, said that DCS had to think about a workable mechanism. He added that it was incumbent on the DCS to liaise with the Department of Health. He stressed that a time frame had to be inserted, rather than using the word “temporarily”, which was too vague.

The Chairperson said that the new Sections 73(3), (4), (5) and (6) were clear.

Mr Max suggested that subsection (3) should appear before subsection (2).

Ms Louw said that the general position around parole was set out in the new Section 73(3)(a). Here, it was clarified that if an offender was sentenced to more than two years, s/he had to serve at least half of the sentence or 25 years, whichever came first. An amendment was proposed under Section 73(6)(aA) to deal with people who were sentenced to a period shorter than two years. Under the current legislation such a person had to serve at least half of the sentence before being eligible for parole.

Mr Selfe stressed that the proposed amendment was very sensible and the amendment was in line with what the Committee had been trying to do for a number of years, which was to get people into community corrections.

Ms Louw said that there was a change of wording only under subsection (b)(i).

The Chairperson asked what “periodical imprisonment” was.

Mr Carel Paxton, Director: Code Enforcement, Department of Correctional Services, responded that this was when a person had to report to a correctional centre every weekend for incarceration for the weekend, but was released on a Sunday.

Ms Louw stated that the DCS had considered deleting Section 73(6)(b) (ii) and (iii), since the provisions had already been repealed by the Criminal Procedure Act (CPA).

Ms Louw stressed that the current position under (iv) was that a person would be eligible for parole at the age of 65 years. She pointed out that the DCS intended to insert a new subclause (vi) that changed (iv). She stressed that not many people would be affected by the new amendment.

The Chairperson asked whether this would mean that a person aged 65, who had served 15 years of his sentence, was eligible to go before the parole board.

Mr Ndlovu asked what the significance of this age was, and whether it implied that a person who was 65 years of age would not commit a crime.

Mr Abram asked whether those aged 65 years and over, who had served more than half of their sentences, were eligible to appear before the parole board.

Mr Selfe gave a practical example of how people who were over 65 years were eligible to appear before the parole board.

Ms Louw responded that the existing position was that if an inmate had been sentenced to life imprisonment, that person would be eligible to appear before the parole board. DCS wanted people who were 65 years to benefit. The age of 65 was linked to the age of retirement.

The Chairperson said that the Committee Members must apply their minds to the issue.

Ms Louw pointed out that she would check how many people would benefit from the provision.

Ms Louw said that there was a change of terminology in (vi)(c), to make it clear that habitual criminals were eligible for day parole.

Ms Louw explained that subclause (vi)(d) was a new provision to cover dangerous criminal.

Mr Selfe stressed that he was concerned about the period determined by the court.

Ms Louw said that a number of amendments were made in order to clarify the position.

The Chairperson asked what Section 276(1)(i) of the CPA said, in relation to sub-clause (7)(a).

Ms Louw responded that it dealt with people who were sentenced to less than five years.

The Chairperson asked why there were different periods.

Ms Louw responded that the references in the past had been to one-sixth of the sentence.

The Chairperson asked about the purpose of Section 116.

Mr Paxton responded that sentences of less than 24 months were considered as direct sentences. Section 276(1)(i) said that the Commissioner had the option to put the person under correctional supervision, if the sentence was less than five years.

The Chairperson questioned the practicality of the provision. He pointed out that everyone sentenced to five years imprisonment would be appearing before the Parole Board soon after they had served one-sixth of their sentence. He added that there was an opportunity to tighten that provision. He asked why the DCS did not raise this to one-half.

Mr Paxton responded that the Parole Board was not involved, and it was only the Area Commissioner who had the authority. He further stated that he did not have the figures of the case loads.

The Chairperson stated that he had never heard of an Area Commissioner releasing an inmate on parole.

Ms Louw responded that the Area Commissioner released inmates for correctional supervision, and not parole.

The Chairperson asked what correctional supervision was.

Ms Louw responded that the one-half figure was not used, because the court was of the opinion that the inmates did not need direct incarceration.

The Chairperson asked whether this was not something to be proven at the time when a person appeared before the magistrate. He pointed out that a person could become corrupt after a few days in a correctional centre. He added that DCS still focused a lot on locking up people, as opposed to using imprisonment as the last resort. He stressed that the provision needed to be examined further. He said it was preferable for a person to be placed under correctional supervision directly after the judgment against him, rather than having that person first referred to a correctional centre, and only going under correctional supervision after having served time.

Mr Max noted that it seemed this provision was implemented by the CPA. There was a need to amend the CPA, in order to alleviate the burden of the DCS.

Ms Ngwenya pointed out that there was no practical implementation of the provision, as Members had seen during their oversight visits.

Mr Ndlovu noted that departments failed to communicate and pointed out that the DCS should be communicating with the Department of Justice and Constitutional Development (DOJ) on this point.

Ms Louw stated that the intention of the court was that a person should serve some part of the sentence before being placed under correctional supervision. She added that the one-sixth was the shortest term that the DCS could determine.

The Chairperson suggested that the DCS should make the provision much simpler. He also requested that DCS should prepare, and distribute to the Committee and to all inmates, a small booklet that related to Section 73.

Ms Louw stressed that the DCS already had a booklet that was available for inmates, and would make it available to the Committee.

Mr Selfe asked why it was not possible to word the proposed amendment as: “may be considered for placement under correctional supervision by the National Commissioner or the Correctional Supervision and Parole Board, as soon as possible after admission to a correctional centre…”

Ms Louw responded that this dealt with a different scenario. It was based upon Section 287(4)(a).

Mr Paxton responded that there were four situations in which correctional supervision could be imposed.

The Chairperson asked about the intention of parole. He reiterated that the DCS needed to move away from incarceration.

Ms Louw cautioned against trying to create a new parole system. She noted that if time periods were amended, the DCS had to explain why it had done so, and furthermore had to make sure that the provisions could be implemented.

The Chairperson noted that officials were overwhelmed because of complex provisions around parole. He added that people were being denied parole because the DCS itself failed to understand the parole system.

Mr Abram noted that there was a problem with the amendments that were being brought in. The language was not user friendly. DCS should refine these amendments. Mr Abram asked whether the DCS had consulted with other parties that were well versed in Constitutional law. He stressed that he had doubts about the constitutionality of the Bill.

Ms Louw responded that nothing had in practice been changed. The provisions had, as far as possible, been written in layman’s terms. The problem seemed to be the DCS’s constant referral to the provisions of the CPA. She stressed that the legislation had been the subject of a Constitutional Court challenge, when none of the provisions had been found to be unconstitutional.

The Chairperson stated that people were not being considered for parole because they had not served four-fifths of their parole.

Ms Louw responded that four-fifths was the minimum.

Clause 13
Ms Louw pointed out that this clause amended Section 75 of the Act, which dealt with the powers, functions and duties of the Correctional Services Parole Board (CSPB). The position that a decision of the CSPB was suspended pending any review of that decision would be clarified.

Mr Abram asked how Section 75(4) would work in practice, and what form the communication would take.

The Chairperson asked how relatives of the inmate would be informed.

Ms Louw responded that this was an area that could be improved. She added that the duty was placed on the court. Ms Louw noted that the current procedure was regulated in the CPA.

Mr Selfe suggested that notifications be done via newspapers.

Ms Louw responded that the Cluster was looking at some options. She added that Mr Selfe’s suggestions would be taken into consideration.

Mr Abram asked at what stage victims were informed by courts of the applications, and whether it was possible that the DCS could make available to the Committee the other legislative provisions to which reference was made.

Ms Louw responded that the victims were informed at the time of sentencing, in cases of rape or murder, but in other cases the court had the discretion on when to inform the victims.

The Chairperson noted that the intention was good. However, he stated that the phrase “…at the time of sentencing…” was ridiculous, and would not work in practice. It was time to stop misleading communities. South Africans would become suspicious of the system because of the failure of Parliament and government to deliver on promises.

Ms Louw responded that the court was obliged to tell the victim to register his or her information with the DCS, and it was the duty of the Parole Board to inform the victim, who, for his or her part, must ensure that his or her contact details were kept up to date.

The Chairperson suggested that there should be public education on the issue in future.

Mr Selfe stressed that he was concerned about the institutions that could trigger a review under Section 75(8). He suggested that the Minister, National Commissioner, Inspecting Judge and the Board should all be able to trigger review.

The Chairperson agreed with Mr Selfe. He asked what would happened if a review board decided to sit on a case for an undue period, and wondered if there were any time periods.

Ms Louw responded that the issue of having more inclusive approaches to the review board would be discussed. She added that the DCS would add time frames. The review board was composed of members of the National Council of Correctional Services (NCCS), which met four to six times a year.

Clause 14
Ms Louw reported that Section 79 of the Act limited the granting of medical parole to sentenced offenders who were in the final phase of terminal illness. Medical practitioners had seemingly been reluctant in recommending placement on medical parole within this limited definition. As a result, many seriously ill or similarly incapacitated inmates failed to qualify for medical parole. This Bill now sought to introduce a new medical parole system that aimed to balance the medical condition of an inmate against the risk posed to society should such inmate be placed on medical parole.

Ms Louw pointed out that three factors must be present before an inmate was considered for placement, namely:  (i) that the inmate was suffering from a terminal illness or was rendered physically incapacitated as a result of injury, disease or illness, to an extent that severely limited daily activity or inmate self-care; (ii) that the risk of re-offending must be low and (iii) that there must be appropriate arrangements for the inmate’s supervision, care and treatment upon release.

Mr Abram noted that Section 79(1)(a) did not say at what stage the disease must be before a person was considered for medical parole. In addition, the phrase “risk of re-offending must be low” might mean that a person was unable to do anything. He added that the provision was too wide, and it did not answer the needs and requirements for medical parole.

Ms Louw responded that it was not possible to delimit “terminal disease”. The DCS did not look at risk of re-offending since, effectively, inmates would already be on their death beds.

Mr Max stated that he was concerned with the application of the provision by medical practitioners.

Mr Selfe asked whether it was possible to get the guidelines that had been promised before March.

Mr Abram said that the clause must be looked at very carefully. He further added that the DCS must carefully consider and balance constitutional issues.

Mr Jafta said that there must be consistency, between Sections 79(2) (a) and (b)

Mr Abram said that he had great reservations in relation to Section 79(c)(ii).

Ms Louw said that a medical condition would be weighed against a risk of re-offending. She added that there were checks and balances, even if the medical condition was not clear.

Ms Louw said that the DCS was proposing one medical advisory board with regional representation for the whole country, under Section 79(3)(a), because it made no sense to have boards for each province.

Mr Abram asked if DCS had considered time frames when it framed this clause. He believed that Sections 79(3)(a) and (b) were too wide and would be difficult to apply.

Mr Max asked how independent the review board would be if it was appointed by the Minister.

Ms Louw responded that the Minister appointed the Parole Board, the Parole Review Board and the National Council of Correctional Services, and that this was not considered a problem.

Ms Louw said that she would look further into the aspects of time frames.

The Chairperson pointed out that one of the stakeholders commenting on the Bill had asked what “self-induced” meant.

Mr Max suggested that there should be an exception to the rule of self-induced conditions, under Section 79(4)(a), to accommodate inmates who were forced to do things while they were in correctional facilities.

Ms Louw responded that if the DCS established a medical advisory board, which in turn scrutinised cases properly, then they should pick up whether a person would be able to recover.

Clause 15
Ms Louw said that this clause amended Section 90 of the Act, which dealt with the powers, functions and duties of the Inspecting Judge. The Section was amended to provide for oversight functions of the Inspecting Judge at remand detention facilities.

Clause 16
Ms Louw explained that this clause inserted a new Section 128A to make it an offence for remand detainees to identity-swap amongst themselves.

Clause 17
Ms Louw noted that this clause amended Section 134 of the Act, to introduce a range of issues relating to remand detainees and medical advisory boards, on which the Minister could make regulations.

Clause 18
The clause provided for the amendment of the table of contents to incorporate the new sections.

Clause 19 and 20
Ms Louw said that the clauses repealed all provisions referring to the development of an incarceration framework, which was not workable. The development of a third parole system in South Africa was highly undesirable and unworkable, and no version of the incarceration framework could practically achieve the desired outcomes stipulated.

Clause 21
The clause set out the short title and commencement date.

The Chairperson suggested that the DCS put in writing the comments and suggestions that the Committee had put forward.

The meeting was adjourned.