Correctional Matters Amendment Bill [B41-2010]: Committee Deliberations
Historical meetings are available in the Justice and Constitutional Development committee.
Meeting Summary
The meeting discussed the amendments that the Committee had suggested. In relation to clause 1 the Committee stated that they would be content with the time period that a detainee spent in police cell or lock-ups to 7 days and not 7 working days a period that had to fall away after 18 months to make way for Optional Protocol to the Convention Against Torture (OPCAT). Ms Lirrete Louw from the Department of Correctional Service (DCS) agreed to effect the necessary changes as had been suggested by the Committee and she went on to explain that the DCS could not put OPCAT in legislation but they could place it as a sunset clause.
The Chairperson stressed that under clause 6 there had to a sexual vulnerability test for detainees and acknowledged the fact that it the application of such a test could be difficult. The DCS agreed to insert such a provision in the Correctional Services Act (the Act) but they stressed that they had to craft the provision carefully so as to avoid liability on the part of the DCS.
With regards to clarifying what other bodies meant in clause 10 the DCS agreed that they would so by inserting a definition which would explain what the other bodies were. There was a lengthy discussion on clause 13. The Committee had requested the DCS to include the Parole Review Board as one of the bodies that could initiate a review while representing the public. The DCS responded that it would be a serious problem since such changes could open a flood gate of applications from the public. It was explained to the Committee that if an inmate had a problem he could challenge the decision of the Parole Board thorough the Promotion of Administrative Justice Act (PAJA). Some of the Members argued that the courts were not accessible to most poor people. Ms Louw suggested that one way of resolving the dispute was for the Inspecting Judge to interact more with the public. The Chairperson stressed that the issue was to be left like that but it would be considered as work in progress.
Meeting report
Correctional Matters Amendment Bill: Further Deliberations
The Chairperson noted that the Committee would continue to discuss the changes that had been suggested to the Correctional Matters Amendment Bill (the Bill).
Clause 1
The Chairperson explained that the Committee had decided that it would not be averse to the compromise that a limitation could be placed on the number of days that a detainee could spend in South African Police Service (SAPS) cells or lock-up. However, the Committee wanted the limitation should be seven days, and not seven working days. He stressed that the pending international Optional Protocol to the Convention Against Torture (OPCAT) would, in future, address the well being of all inmates, and he noted that this should be enacted in the next eighteen months.
Ms Lirette Louw, Legal Advisor, Department of Correctional Services, stressed that the Department of Correctional Services (DCS or the Department) was in agreement with limiting the time period to seven days, as opposed to seven working days. However, she noted that there could not be direct reference to OPCAT in legislation, but it was possible to insert a sunset clause so that effectively it would take over when the legislation to support it was in force. She noted that DCS would consult within the Cluster to see how far the matters around OPCAT had progressed.
Mr J Selfe (DA) stressed that he was worried about the operation of the Cluster as a whole, so to his mind the fact that the Cluster was working on OPCAT was not good enough. He thought that a formal report should go for adoption by Parliament, to the effect that this matter should be finalised by the National Assembly, within eighteen months.
The Chairperson agreed with Mr Selfe that Parliament should be urged to put OPCAT in force in
Mr Sisa Makabeni, State Law Advisor, Office of Chief State Law Advisor, said that he was comfortable with Mr Selfe’s proposal.
Clause 6
The Chairperson said that the Committee was concerned that detainees should be assessed for sexual vulnerability. He added that the Committee was aware that the DCS had said that this might not be practical, but was adamant that such a provision had to be inserted.
Ms Louw agreed that the DCS could add such a provision. However, there might be a problem as to what kind of liability DCS might face. DCS would need to develop some sort of test.
The Chairperson asked how the DCS conducted a social and psychological needs assessment.
Ms Louw responded that a social assessment was conducted by a social worker, who would look at the kind of offence alleged or committed, the background of the offender and whether the offender needed to be enrolled in anger management classes or anti-sexual violence classes, depending whether he or she had committed a sexual offence. The psychological needs were assessed by looking at whether an offender needed psychotherapy. All this was done by qualified personnel.
Mr Willem Damos, Deputy Commissioner: Remand and Detention Security, Department of Correctional Service, responded that a multidisciplinary task team put a series of questions to the detainees on the day they were admitted.
Mr Mike Ramagoma, Advisor to the Minister of Correctional Services, stressed that the DCS needed to craft the wording carefully to avoid too wide a liability, bearing in mind that the legislation would be interpreted by the courts.
Clause 9
The Chairperson said that the Committee was comfortable with the new Section 49D, which related to mental health
Clauses 10 and 11
The Chairperson noted that the Committee had felt that the phrase “or other body” was too wide and the phrase either had to be removed, or the other bodies needed to be named in terms.
Ms Louw responded that the DCS would insert a definition that explained what “other bodies” meant, since in fact the phrase only referred to the Parole Review Board and the National Director of Public Prosecutions (NDPP).
Clause 12
The Chairperson stressed that the Committee would not agree to a person continuing to be detained by the DCS after his incarceration period had ended, by reason of having an infectious disease,.
Ms Louw responded that the provision would be removed and a new provision would be inserted that would enable the DCS to notify other Departments, such as the Department of Health, in advance of the end of the period, of the health condition of any inmate concerned.
Clause 13
The Chairperson said the Committee believed that the Parole Review Board should be included amongst the bodies that could refer a Parole Board decision for review, in order to allow for civil society involvement. It was suggested that the wording should be: “ The chairperson of the Correctional Supervision and Parole Review Board may, on receipt of an application containing grounds which prima facie indicate that a decision of any Correctional Supervision or Parole Board was invalid or unlawful, direct that the Correctional Supervision and Parole Review Board reconsider the matter, in which case the record of the proceedings before the board must be submitted to the Correctional Supervision and the Parole Board” The intention was to ensure that the Parole Board must be receptive to other considerations. He said, however, that there was a need to find a balance, in order to prevent a flood of applications from civil society to initiate such a review.
Ms Louw stressed that the DCS had a “serious problem” with the proposal that the Parole Review Board be included, and had described it as “serious” because she wanted to detail what kind of parole system operated in South Africa, and to highlight how it differed from what the Committee was proposing. She explained that the Parole Review Board, which was comprised of members of the community, did not in fact have the power to look at the validity or unlawfulness of any decision of the Parole Board. Instead, its role was merely to clarify certain issues for the Parole Board. That was why it dealt only with about 30 cases a year. She also stressed that if an inmate had a problem with the decision of the Parole Board, he or she could initiate an administrative action in terms of the Promotion of Administrative Justice Act (PAJA ). She added that if the public was included to the extent suggested by the Committee, then there would be a need for a whole supporting department to run the system, and stressed that it would be an administrative nightmare, since many families would want to initiate a review. The public did not embrace the system of parole, and the public would always question why a person was released.
The Chairperson asked the DCS how a victim and civil society could initiate a review of the decision of the Parole Board.
Mr L Max (DA) explained that the problem was that only three bodies could trigger a review. He stressed that the courts were not really accessible, because they were expensive. He asked what harm could be caused if the Parole Review Board was included.
Mr Selfe pointed out that the community did not accept the parole system because the system was not credible to the community because they failed to understand it. In order to restore credibility, there was a need to have an accessible review mechanism. Members of the community would struggle to establish locus standi in court, and in most instances they would not have the money to go to court.
Ms W Ngwenya (ANC) stressed that if the issue was opened to everyone then there would be difficulties. She stated that the issue did not need to be debated because the credibility of the Parole Board would be questioned.
Mr Carel Paxton, Director: Code Enforcement, Department of Correctional Services, said that the Parole Board used to be composed of members of the Department but it was then changed to include members of the community as part of the Parole Board. He added that the victim had an opportunity to challenge the decisions of the Parole Board, in terms of the Correctional Services Act.
Mr Ramagoma stressed that there was a need to hold further discussion on the matter. He explained that the purpose of the Bill was to try and ensure that the system of parole was strong and credible through putting in place provisions and guidelines. He added the DCS was discussing whether or not to change the PAJA system in
Ms Louw added that the judges on the Parole Review Board, who were full time judges, would not have the time to sift through cases. She said that the Inspecting Judge represented the public broadly, as there were reports to the Inspecting Judge from the Independent Correctional Centre Visitors (ICCV). She stressed again that a victim had an opportunity to go to the Parole Board.
Mr Max said that what Ms Louw had said made sense. He asked whether there was indeed a problem that the Committee needed to address in relation to including the public, and, if so, how large this problem might be.
Mr Makabeni stressed that there was no need to create an extra burden on the Department, and it was necessary to undertake a thorough investigation before changing a system.
Mr Selfe stated that he had no confidence in the system. He stressed that he had tried to refer an unlawful matter to the former and current Ministers, but to no avail. He further pointed out that the Inspecting Judge had restricted power, in terms of Section 90 of the Act.
The Chairperson asked what mechanisms were put in place in order to ensure that a decision was reviewed. This area needed to be discussed. He asked whether there was a way to make the system work more efficiently and effectively if there were problems.
Mr S Abram (ANC) asked exactly what administrative burden was referred to by the DCS. He stressed that a detainee would serve a number of years before being considered for parole, so the Committee was here speaking of medical paroles. He did not understand the claims that there would be an “avalanche” of applications. He asked for the numbers of people released on medical parole over the previous three years. He stressed that the Constitution guaranteed certain rights, but he asked whether the rights were being delivered. This Committee was supposed to make it possible for people to access State institutions.
Mr V Magagula (ANC) asked how a Minister could refuse to entertain a request.
The Chairperson stressed that there was need for a comment on the role of the Inspecting Judge. He asked whether the issue was about educating the public. The Committee needed to think about how civil society could be included.
Mr Ramagoma explained that education was important in relation to access to justice. He added that people did not have access to other bodies. He noted that there could be weaknesses in the system and that needed to be addressed. He said that the Minister had to apply his or her mind, in the utmost good faith, when accepting or rejecting a request. The mere fact that a Minister had received a request did not mean that he or she had to agree. Mr Ramagoma noted, in answer to Mr Abram, that he had not understood that this was limited to medical parole.
The Chairperson stressed that the issue was not only about medical parole but was rather about the entire parole system.
Ms Louw said that the average number of parole decisions was about 20 000. She responded that there was no provision that prevented the Inspecting Judge from helping civil society and hence it was a public education process.
Mr Selfe asked Ms Louw to comment on the wording of Section 90(2), which, in his view, limited the Inspecting Judge.
Ms Louw responded that it was in the context of considering complaints.
The Chairperson suggested that the wording be left as it was in section 75(a). He added that the matter was to be considered as work in progress.
Clause 14
The Chairperson stressed that the Committee had accepted the position that had been stated by the DCS but with a qualification since some detainees could be forced to do what they did not want.
Ms Ngwenya stressed that it was important for the DCS to make sure that they were strict especially when they issued out tablets.
The Chairperson said that the Committee reserved the right to amend or strengthen section 75(a). He requested that the DCS submit a document with the necessary amendments by the 22nd of February. He added that there would be a discussion in the next meeting on the implications of the State of the Nation Address on the DCS and the Committee would also be meeting with a human rights group from
The meeting was adjourned.
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