Correctional Matters Amendment Bill [B41-2010]: Department of Correctional Services clarification

Correctional Services

14 February 2011
Chairperson: Mr V Smith (ANC)
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Meeting Summary

The Committee had previously heard the explanations of the Department of Correctional Services (DCS) about proposed amendments included in he Correctional Matters Amendment Bill (the Bill) and had raised certain queries or indicated those areas in which it did not agree with the Department. The Committee now considered the issues and the Department’s further comments. In relation to Clause 1, the Committee had asked for an extension of the definition of “remand detention facility” also to police lock-ups, but DCS still maintained that this would pose undue additional burdens on the Inspecting Judge, that this was already covered by the Independent Complaints Directorate. The DCS proposed that the number of days that a detainee spent in police cell or lock up be limited to “7 working days” but the Committee felt that this should be “7 days”. Some Members still did not agree with the reasons for not extending the definition. In relation to Clause 6, the Committee had recommended that all detainees be assessed after admission in order to determine “vulnerability for sexual violence and exploitation”. The DCS felt this would not be practically possible, but recommended instead that the Committee should, when reporting to Parliament include this proposal for consideration when a wholesale review of the Correctional Services Act took place. The Committee was prepared to drop its request in relation to Clause 6, but was adamant that a new subclause covering this must be included in Section 38. The Department’s explanation on Clause 9 was acceptable, provided that the red tape around giving information to relatives was reduced. Members noted the explanation of the Department about the additional health care services in the new Section 49B, as the merits of each case may demand, but noted that the Department should still clarify the phrase “as soon as practical” in Regulation 8. The Department had given clarity on the term “mentally ill” but the Committee had asked that subsection 49D(b) should be deleted. It was noted that, in relation to Clauses 10 and 11, the DCS would be specifically naming the other bodies referred to. In relation to Clause 12, DCS had now proposed that the provision be reworded, so that DCS would not continue to hold those who had served their full sentences, but who posed a health risk to themselves or the community, but must instead notify the Department of Health of their release, so that this Department could assume responsibility. Members did not understand the reasons that the DCS had given for not including the Correctional Supervision and Parole Review Board in the categories who could refer a Parole Board decision for review, and thought this should be done. The explanation of the DCS around the difficulties of removing references to “self-induced”, in Clause 14, was accepted, and it was noted that the concerns should be addressed in regulations.


Meeting report

Correctional Matters Amendment Bill: Deliberations
Chairperson’s Opening Remarks

The Chairperson stated that the purpose of the meeting was to go through the comments from the Department of Correctional Services, given during the last two meetings, about proposed amendments, and what the Department’s reaction was to the Committee’s suggestions.

He set out the issues in relation to each of the clauses in contention.

Clause 1
It was noted that the Committee had been concerned about the treatment of persons who were held in police custody. Remand detainees enjoyed a number of rights and privileges under the Correctional Services Act (the Act). Despite the fact that similar provisions were contained in the South African Police Service (SAPS) Standing Orders, the Committee had noted, from its oversight visits, that these provisions were not applied consistently. The Committee had therefore proposed that the definition of “remand detention facility” be extended to include police cells or lock-ups, and that the mandate of the Inspecting Judge should be extended also to monitor the treatment of persons in police cells or lock-ups. The Committee indicated that should this not be possible, then the concerns of the Members could be addressed by limiting the time periods for which a person could be detained in a police cell.

The DCS had responded that the inclusion of reference to “police cell and lock-ups”, in the definition of “remand detention facilities” would result in the blanket extension of the ambit of the Act to all persons in police cells. DCS pointed out that the SAPS officials were under a Constitutional obligation to treat persons in police cells humanely and in accordance with the Constitution. DCS further stated that should the application of the Act be extended in the manner proposed by the Committee, then extensive consultations would have to take place between the DCS and the SAPS, and the legislation applicable to both Departments would have to be amended accordingly.

DCS then pointed out that the Independent Complaints Directorate (ICD) had the mandate to investigate complaints of torture or ill treatment at the hands of the SAPS. It was added that South Africa was in the process of drafting enabling legislation in order to ratify the Optional Protocol to the Convention Against Torture (OPCAT). Lastly, the DCS pointed out that the concerns of the Committee could be addressed through the limitation of the period of the time that a remand detainee could spend in a police cell or lock-up. The DCS proposed that the time period that a remand detainee could be detained in a police cell be limited to 7 working days.

The Chairperson said that the time period should be limited to “7 days” and not “7 working days”.

Mr V Ndlovu (IFP) responded to the argument that had been raised by the DCS that if the definition  of “remand detention facilities” were to be extended then the Judicial Inspectorate would be unduly burdened, since there were about 1 000 police stations. He stressed that it was not about the number but about the principle.

Mr L Max (DA) stated that the DCS needed to give the Committee a legitimate reason why the definition should not be extended.

The Chairperson stressed that he would be happy if the time period would be limited to 7 days. He added that if the Portfolio Committee on Justice and Constitutional Development were to enact legislation to address the issue of torture then the concerns of the Committee could be addressed.

Mr J Selfe (DA) agreed with the Chairperson about limiting the time period to 7 days. He asked whether it was possible to stress that the issue of 7 days would fall away after 18 months, unless the OPCAT was not in place.

Mr Max asked why the issue of 7 days was supposed to fall away.

The Chairperson responded that it was to put pressure on the departments to enact legislation that related to OPCAT. He added that the Committee would argue for 7 days and not 7 working days.

Clause 6
The Committee had recommended that the assessment after admission should also focus on determining “vulnerability for sexual violence and exploitation”. The DCS responded that Section 38 of the Correctional Services Act (the Act) was only applicable to sentenced offenders and the purpose of the assessment was to compile a sentence plan to address the rehabilitative needs of the offender as identified through the assessment. It was also pointed out that Section 6 of the Act dealt with the admission of remand detainees. Because remand detainees were admitted in large numbers, an assessment on the additional factors suggested would not be practically possible. It was stressed that it was not clear what “test” would be applied by officials to make such a determination. The DCS therefore recommended that the Committee should, in its report to Parliament, include a request to the Department to give consideration to the inclusion of such an assessment ground in Section 6 of the Act, as part of a broader review of all provisions of the Act.

Mr Selfe stated that such an assessment was not only for the purpose of a sentence plan. He agreed that it could be difficult to test sexual vulnerability, but the Department still needed to apply its mind to the fact that a person could be vulnerable. He also agreed that Section 6 needed to be amended. Mr Selfe suggested that a new sub-section (j) be added in Section 38(1), which dealt with the vulnerability to sexual violence and exploitation, and that a new provision should be inserted in Section 6(6) that mandated the DCS to assess detainees, on admission, for vulnerability to sexual violence and exploitation.

Mr V Magagula (ANC) stated that a study needed to be undertaken in order to assess whether it was possible to implement such proposals.

The Chairperson responded that the Committee would not have time to undertake a study since the Bill had to be completed by 31 March.

Mr Ndlovu stressed that the idea was good, but he questioned whether it could be implemented.

The Chairperson noted his agreement with Mr Selfe on including a new provision in Section 38, but was not sure about inserting such a provision in Section 6.

Mr Selfe agreed that it may not be practically possible to try to include a provision in Section 6, but was adamant that it must be inserted in Section 38.

Clause 9
The Committee had requested the DCS to explain why Section 49 of the principal Act, which dealt with visitors and communication, was not retained as part of the new Chapter on remand detainees. The DCS had responded that Section 13 of the principal Act was now applicable to remand detainees as well, and it was no longer necessary to retain Section 49, since Section 13, read together with Regulation 8 of the DCS Regulations, covered and regulated issues of communication, including communication with the community.
The Chairperson stressed that the Committee would be satisfied if relatives of detainees could get information without any red tape.

New Section 49B
The Chairperson noted that the Committee had requested the DCS to clarify which additional health care services were referred to in sub-section (2). The DCS responded that it was standing practice that remand detainees with disabilities received additional health care, as the merits of each case demanded. An example was given of a remand detainee who lost his sight, who was taken to hospital to receive primary health care, and then needed to be taught to use a stick and to read in Braille.

Mr Selfe asked whether all the references to “must” had been removed.

Mr Max asked what was meant by the phrase “as soon as practical” in Regulation 8, and added that the DCS should be explaining what this meant.

New Section 49D
The DCS had been asked to clarify what was meant by “mentally ill” and to clarify certain aspects around the Mental Health Care Act and its application. The DCS had responded that the Mental Health Care Act of 2002 applied only to sentenced offenders, and not to remand detainees. This appeared from a reading of the definitions clause, together with Chapter VII of that Act. It was stressed that the scheme of the Correctional Services Act spoke to rehabilitation and the steps to be taken upon expiry of the term of imprisonment of a mentally-ill prisoner. Furthermore, the Committee gave its opinion that the proposed DCS definition of a “remand detainee” was wrong, and sub-section (b) needed to be deleted.


Clauses 10 and 11
The Committee had requested that the DCS clarify what was meant by “other body” in the sections that these clauses proposed to amend. The DCS responded that initially that the “other body” referred to was the Director of Public Prosecutions. However, this phrase could also be read as referring to the Correctional Supervision and Parole Review Board. The DCS then agreed that, for the purposes of clarity, the phrase “other body” should be substituted with a specific reference to the separate bodies to whom the DCS was referring.

The Chairperson stressed that the DCS had agreed to remove the phrase “other body”.

Mr Max agreed that the phrase “other body” was vague and that specific names of the bodies were needed.

Clause 12
The Committee had asked that the DCS must motivate the retention of Section 73(2). The DCS responded that it was acting on advice of the medical practitioners. It was stressed that the aim of this provision was to protect an inmate who, upon release, might not be able to timeously access health care services before passing away, and further to protect society if he or she could be a source of infection. DCS explained that in practice this provision was apparently used for offenders serving short periods of incarceration. Consideration must be given to whether DCS would be liable if the person died, or infected others, if this provision no longer applied. The DCS proposed that the provision be reworded to impose a responsibility on DCS to alert the Department of Health of the position, so that the Department of Health must then take responsibility for the released inmate on expiry of his or her term of imprisonment.


The Chairperson reiterated that the DCS had agreed to remove the provision that remand detainees who had an infection were to be kept in remand detention facilities despite the fact that their incarceration period had lapsed.

In relation to Section 73(6)(b)(vi) the Committee had asked why DCS had cited the age of 65 years. The DCS responded that the age of 65 years was linked to government policy on economically active citizens, which defined a person of 65 years and older as “aged”.

Clause 13
The Committee requested that consideration should be given as to why the Correctional Supervision and Parole Review Board should not be included amongst the bodies that could refer a Parole Board decision for review. The DCS had responded that the Correctional Supervision and the Parole Review Board were not permanent bodies. The DCS also recommended the insertion of a time frame within which to finalise matters referred to the Review Board.

The Chairperson asked why the ability to challenge could not be extended also to the Review Board.

Mr Selfe stated that he could not understand the argument by the DCS that the bodies were not permanent bodies. Many bodies acted as both judge and referee. Because parole was a sensitive matter, the credibility of the parole system needed to be safeguarded. Mr Selfe also asked how an aggrieved member of the community could complain, and suggested that he or she would surely have to raise concerns via a Parole Review Board.

Mr Max agreed that the provision would not cause any harm since the Review Board would not be reviewing their decisions.

Mr M Cele (ANC) agreed with Mr Selfe.

Ms W Ngwenya (ANC) asked whether there was a Parole Review Board currently.

The Chairperson responded that the Parole Review Board existed. He went on to explain the point that Mr Selfe had raised earlier. He added that the Board would review a decision for good cause. He agreed that the Parole Review Board had to act on behalf of the people.

Clause 14
The Committee had asked the DCS to clarify what was meant by “self-induced”, and to motivate the retention of the provision. The DCS was in agreement that the subsection in which this appeared could be omitted from the Bill. The DCS was of the opinion that enough safeguards were built into the system already to work against abuse of the system. These included the existence of a medical advisory board and the requirement that the “risk of re-offending” must be low.


The Chairperson stated that the DCS had disagreed with the issue of self-induced conditions, when he had discussed the matter with the DCS. He understood why it had done so, as there was a delicate balancing act involved. He agreed that some detainees could be forced to do things that they did not want, but the difficulty for the DCS was where to draw the line. DCS had to find a way of including the issue, and addressing the concerns of Members, in regulations.

The meeting was adjourned.



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