Judicial Inspectorate for Correctional Services report; Correctional Matters Amendment Bill: adoption

Meeting report

Chairperson’s Opening Remarks
The Chairperson noted that the feedback report from the Department of Correctional Services (DCS or the Department) on the budget review 2010 had been postponed, owing to the non-availability of the National Commissioner.

Judicial Inspectorate of Correctional Services: Report on independent status
Mr Deon van Zyl, Inspecting Judge, Judicial Inspectorate of Correctional Services, stated that the purpose of his report was to lay a foundation for interaction with the Committee on matters relating to the operation and independence of the Judicial Inspectorate of Correctional Services (JICS or the Inspectorate). Special reference was made to the progress made in the implementation of paragraph 2.2.7 of the Budgetary Review and Recommendation Report (BRRR) of the Committee, relating to the performance of the DCS.

He reminded Members that the JICS was an independent office, headed by an Inspecting Judge, which was established in terms of the Correctional Services Act (the Act). In terms of section 85(2) of the Act, the object of the JICS was to “facilitate the inspection of correctional centres in order that the inspecting judge may report on the treatment of inmates in correctional centres…” The vision of the JICS was to protect the human rights of all persons incarcerated in correctional centres.

He briefly highlighted its operations. JICS currently had a staff complement of 50 persons and 220 Independent Correctional Centre Visitors (ICCVs) who were employed as independent contractors. The Correctional Services Amendment Act 25 of 2008 provided for a number of amendments to the JICS staffing and structure, including the appointment of a Chief Executive Officer (CEO) who had to be identified by the Inspecting Judge and appointed by the National Commissioner. He noted that the National Commissioner had been invited to participate in the short-listing of candidates and in the subsequent interviewing process that preceded the identification and appointment of a CEO.

The JICS and the DCS had three meetings in 2010 to address operational matters, with special reference to the JICS structure, staff complement and information technology (IT). In the 2006/2007 Annual Report of DCS, the JICS indicated that it was reviewing its current structures to ensure that its limited resources would be focused on areas of service delivery.

The next issue he wished to address was the resourcing of the JICS. A recent ATC had reported on a recommendation that the JICS should be operating entirely independently of the DCS, with its financial management also being audited separately, and that various ways should be explored of how the JICS could receive its own budget, independent of the DCS. The difficulty was not only that the recommendations contained in JICS reports had not been addressed, but also that the National Commissioner of DCS had failed to provide a progress report on the exploration by his department of the ways in which JICS could receive its own budget allocation. Judge Van Zyl stated that the JICS maintained that a separate budget allocation would not only enhance the JICS’s independence, but also would serve to increase its productivity. Currently, the DCS supported the JICS as an outpost or external institution, but functions were vested in the DCS at its head office. He added that from time to time the JICS’s financial dependence on the DCS had caused serious operational challenges to the JICS, because the DCS had at times imposed, or attempted to impose, its internal financial and administrative policies and procedures on the JICS, which then frequently led to delays in service delivery.

Mr Adam Carelse, Acting Director, Judicial Inspectorate of Correctional Services, stated that the point of departure following the amendment of the Act was to see that the CEO was appointed. Once this was done, the structure of the JICS would be reviewed and placed before the Department of Public Services and Administration (DPSA), who would then approve that structure. He suggested that when it came to the budgeting of the JICS, the JICS was supposed to work on a fixed percentage. He went on to suggest that the JICS be accountable directly to National Treasury, and not to the DCS. He informed the Committee that the Inspecting Judge and some employees of the JICS had not yet received their salaries for the month of February. In this regard, JICS could not go to National Treasury but instead had to approach and interact with the DCS, who would then approach the National Treasury. He stressed that such a situation impacted on the morale of the staff and the image of the government in the supplier community.

He then wished to discuss the extension of the JICS mandate. This matter had been touched on in paragraph 3.8 of the Committee’s own Report on the possible consequences of ratification of the Optional Protocol to the United Nations Convention against Torture (OPCAT) by South Africa. The question was raised whether this would not give a rise to a duplication of functions between the JICS and the envisaged “national preventative mechanism”, and it was said that in this event, then consideration could be given to extending the functions of the JICS.

The Inspecting Judge had mentioned, during a briefing to the Committee in November 2010, that the JICS had a limited mandate and lacked powers to follow up on inspections. It was stressed also that it had no disciplinary powers, but only powers of investigation. The Inspecting Judge also did not have judicial powers when he visited correctional centres, otherwise he could deal immediately with problem situations by issuing appropriate orders of Court. However, the downside to this would be that the DCS, if such orders could be issued, could be taken on review to the High Court, so that increasing the Inspecting Judge’s powers might not necessarily be the immediate solution to the problem. Judge van Zyl had stressed at the time that he was not asking for more powers. In regard to OPCAT, the Inspecting Judge, in consultation with the Minister, Deputy Minister and National Commissioner, had agreed that the JICS’s functions should not be extended to include the functions of a national preventative mechanism under OPCAT, since this would involve a radical restructuring of the JICS.

Discussion
Ms W Ngwenya (ANC) asked what had contributed to the increase in expenditure from R15 million to R19 million, and how much had been spent by the JICS so far.

Judge van Zyl said that he could not answer Ms Ngwenya’s question directly, and that although the person responsible for the finances should have been attending this meeting, he was currently trying to sort out the issue of the salaries.

Mr Carelse added that the expenditure had increased because there were a number of new independent contractors who had been appointed.

Mr V Ndlovu (IFP) asked whether the JICS wished to create “a department within a department” or whether it was proposing the creation of something separate. He also asked whether the JICS was talking of independence because of financial constraints or because of operational constraints.

Judge Van Zyl responded that the JICS was not trying to create a “department within a department” but was trying to create independence, outside the DCS.

Mr L Max (DA) asked whether there was any conflict of interest in the National Commissioner appointing the CEO. He stressed that what the Committee had heard were serious problems that jeopardised the proper functioning of the JICS. He added that he was in support of the JICS managing its own finances.

Judge van Zyl stated that the Act was clear, and the CEO must be identified by the Inspecting Judge, who had powers to refer the matter. He added that the National Commissioner did not have any veto powers and that he was obliged to appoint the person that the Inspecting Judge had identified.

Mr V Magagula (ANC) noted the Inspecting Judge’s frustrations. He agreed that there should be some form of independence so that the JICS could do its work properly.

The Chairperson stated that he was of the opinion that financial independence would go a long way. He urged the JICS to look at the model that the Independent Complaints Directorate (ICD) was using. He added that he saw it as counterproductive that the JICS should be dependent on the DCS budget.

Ms M Nyanda (ANC) recommended that the JICS should be independent. She stressed that its reliance on the DCS posed a serious operational challenge.

Judge van Zyl welcomed the Chairperson’s suggestion to look at how the ICD was operating. He also thanked Mr Magagula for his sympathetic support.

Mr M Cele (ANC) asked how often the Inspecting Judge met with the Minister.

Judge Van Zyl responded that when he had been appointed, the agreement was that he was supposed to meet the Minister on a regular basis. He stated that he met the former Minister once every six to eight weeks. He added that he had not, however, met the new Minister on a regular basis, but when they did meet, they had held good discussions. Although he had had some problems in meeting the new Deputy Minister, much use was being made of Mr Sam Machoba.

Ms Ngwenya stated that the DCS needed to answer a lot of questions on the frustrations of the JICS. She asked how the Inspecting Judge intended to deal with the issue of inspecting police cells.

Mr Ndlovu asked whether the issue that had been identified in the second paragraph of page 4 still happened, especially after the DCS denied some of the allegations.

Judge van Zyl responded that once an inmate was removed from the custody of the DCS he was no longer under the authority of the DCS. He stated that Sections 40, 41 and 206 of the Constitution made it clear that departments were supposed to co-operate with one another.

Correctional Matters Amendment Bill: Adoption
The Chairperson tabled the “clean” version of the Correctional Matters Amendment Bill for adoption.

Mr Max asked the DCS whether there were any unauthorized changes.

Ms Lirette Louw, Legal Advisor, Department of Correctional Services, responded that there was only one change that the Committee had not seen before, and that was the numbering on page 12, from line 53.

Members considered each clause of the Bill.

The Bill was adopted.

Draft Report of the Portfolio Committee on Correctional Services on the Correctional Matters Amendment Bill [B41-2010], dated 2 March 2011: Adoption
The Chairperson tabled the draft Report of the Portfolio Committee on Correctional Services on the Correctional Matters Amendment Bill [B41-2010], and asked Members to comment.

On page 1, he noted that the word “submission” in the fifth line, paragraph 1.4, should read “submissions”. On page 2, he noted that paragraph 2.1 referred to health legislation, but this did not have a direct bearing on the Bill, and did not think that there was a need to remove the whole of paragraph 4.2.

Ms Nyanda stated that the matter was supposed to be referred to the Department of Health, and not to the DCS.

The Chairperson suggested that a full stop be placed after the word “facilities” in paragraph 2.1.

Mr Ndlovu agreed.

Mr Max stated that if a full stop was placed there, then it gave rise to the question where the referral should be.

The Chairperson conceded that Mr Max was correct and suggested that the word “preferably” should be inserted between “should” and “not” and the rest of the sentence could be deleted.

No amendments were suggested to page 3

The Chairperson suggested, on page 4, that the word “unconstitutional”, in the third line of paragraph 2.5, be substituted with the word “undesirable”.

No amendments were suggested by the Committee to pages 5 and 6.

The report was adopted, with the amendments.

The meeting was adjourned.