Jali Commission recommendations implementation by Department of Correctional Services

Meeting report

Introduction and background by the National Commissioner
Mr Tom Moyane, National Commissioner, Department of Correctional Services (DCS), thanked the Committee for an opportunity to talk about matters that were an “albatross around the neck of the DCS”, as he phrased it. Closure was needed about the performance of the DCS over the preceding ten years. The important question was who was in charge in the DCS. The Jali Commission had touched upon that question.

Mr Moyane told the Committee emphatically that the DCS management was indeed in charge. A leadership role had been taken up to deal with crucial issues. The DCS had lost its institutional memory due to people leaving, but there were still officials, like Mr Modise and Mr Paxton and others, who had been there at the time of the Jali Commission investigations, who could provide guidance.

Mr Moyane noted that before 1994 the DCS had been run along military lines, with a military command structure. There had been isolated cases of corruption in the form of fraud, but it had not been rife. On 1 April 1996 the then Minister demilitarised the DCS structure, without putting anything else in its place. Deilitarisation left a vacuum for the following five years. There was no longer a command structure, and there was a consequent loss of leadership. At that stage, organised labour put forward its agenda. In 2001, POPCRU embarked on a campaign of getting its own people into critical posts. The result was chaos, there was no process and no structure. The lawlessness that the Jali Commission referred to, had been the result of that. The DCS was crippled. Gangs had always been a presence in prisons, but during 1996 to 2001 they capitalised on the situation and took control.

During that period, there was a breakdown of security, and escapes were rife. A policy of zero tolerance to security lapses was introduced in 2001, with consequences for Heads of Centres. But fraud and corruption escalated. There was nepotism and abuse of power. Abuse of power had gone out of control in the 1990s already. During 1999 to 2001 there was no permanent leadership and the consequent instability was exploited. Mr Lembethe brought order and stability from 2001 to 2006, but then there was again a period of impermanence. The appointment of a new National Commissioner and Chief Financial Officer in 2010, brought new stability.

Mr Moyane noted that when the Jali Commission conducted investigations into eight management areas, the Special Investigating Unit (SIU) opted for partnership with the DCS. The DCS first signed a contract with the SIU in 2004, for three years. The DCS had requested help from the SIU, to help with issues of medical aid scheme fraud, and corruption, including the abuse of power. The DCS had in fact adopted an anti-corruption strategy three years before the Jali Commission. There had been allegations against officials, but not backed up by sufficient evidence to take steps. At that time, the organisational culture of the DCS was subjected to scrutiny. It was recognised that there was a need for ethics development. Chapter 8 of the White Paper on Corrections dealt with the concept of the ideal official, and the DCS began to take that into account. Insignia and dress codes were brought back.

During the investigations of the Jali Commission, the DCS received reports on breaches of discipline, and acted on those. The DCS engaged with the Jali Commission recommendations, and began to develop a monitoring system for all. Reports like those of the Judicial Inspectorate, were seriously considered. The DCS had not agreed with the Jali Commission about super maximum facilities. The Commission had argued that such facilities infringed on human rights, but the DCS had felt that certain categories of offender required super maximum centres. The DCS had seen it as a necessary weapon in the security arsenal. Corruption, escapes, assaults, gangs and abuse of power were features of prisons worldwide. What the DCS resolved to do, was to take offenders up into its mandate and rehabilitate them. Decisions were taken on issues of ill-discipline. Corruption was currently more isolated. There was no longer a situation of systematic mismanagement.

Mr Moyane continued that the DCS had been open to the Committee about the challenges it faced. The current DCS could not be compared to what it was like at the time of the Jali Commission. Currently there was compliance and accountability. There was a commitment to eradicate errors. There were strategies, performance indicators and an annual performance plan.

DCS briefing on implementation of Jali Commission recommendations on corruption
Ms Jenny Schreiner, DCS Chief Deputy Commissioner, said that the DCS had established an anti-corruption strategy at the same time that the Jali Commission commenced in 2001. There were two parallel processes. The DCS created the Chief Directorate Legal and Special Operations in 2003, consisting of the Departmental Investigation Unit (DIU), and Code Enforcement (CE).

From 26 June 2006, the DCS began to analyse different misconduct cases. Challenges were related to the fact that most of the alleged misconduct had occurred prior to 2001. There were problems around the availability of witnesses.

Ms Schreiner took the Committee through a detailed account of actions taken in the MEDCOR fraud case, with accompanying figures, including the number of implicated officials who had since died or gone on pension.

A draft anti-gang strategy and draft information manual had been developed and was ready for consultation with external role players. Concerning security, she noted that there had been improvement before the release of the Jali report. DCS security was people driven. The same applied to overcrowding.

With regard to the abuse of power through sexual harassment, she noted that the DCS employment equity and sexual harassment policy and procedure had been reviewed.

She concluded that the DCS had made significant progress, and was not the same as it had been in 2005, when the Jali report was made public.

Discussion
The Chairperson asked if, other than the disagreement about super maximum facilities, there were other areas were the DCS had been unable to implement Jali Commission recommendations.

Ms Schreiner responded that there had been misconduct that could not be addressed, because evidence could not be gathered. She asked that the Committee bear in mind that elements of the Jali Commission were not closed issues. Gangsterism, staffing issues and overcrowding had been addressed by the DCS of its own accord, enhanced by the Jali Commission.

The Chairperson expressed concern about reports regarding the conduct of senior officials. There was evidence of abuse of power, by males on junior females, which took the form of sexual harassment. He said that a regional commissioner from Limpopo and Mr Raseroka [Deputy Commissioner: DCS] would get a call from the Committee for an unannounced visit, to look into that matter. The Department was failing dismally when there was abuse by virtue of rank. Generally the victims were young females.

Mr Moyane replied that the prevalence of abuse of power of that kind, was the focus of the current administration and its leaders. The DCS organisational culture had to be taken on board. There had to be every effort to produce the ideal officer as set out in the White Paper. Officials had to be trained. The culture that produced abuse of power was being combatted on every level, not just the senior ranks. Officials were undermining reporting on the prevalence of sexual abuse. The matter was being taken seriously. As change progressed, pockets of resistance became visible. Officials kept silent about their superiors. It was important that there be a campaign that it was right to complain.

The Chairperson referred to the time taken to deal with disciplinary matters. The Committee had been told in June that ten officials had admitted guilt. There had been a delay due to outstanding administration. When the Committee had visited Boksburg on 27 July, there was an official who had been found guilty of computer tampering. The official was suspended on that day. He asked about the current status of this official. There were 13 officials from whom their debt to the state had not been deducted yet. There seemed to be an inability to deal with matters that had been picked up timeously. Three months was too long a period to deal with such cases. He asked if delays were due to lack of capacity or unwillingness.

Mr Moyane replied that time lapses were not due to lethargy on the part of the DCS.

The Chairperson turned to the Jali recommendation that there be surveillance of cells. The DCS response had been that it would constitute infringement on the right to privacy. He was prepared to go public with the argument that abuse was occurring inside cells, and that the rights of those abused had to have primacy over those of the abusers. He was prepared to fight any civil society body who would not take the rights of the abused into account. Ms Schreiner had noted that officials were supposed to walk around cells, but there were severe staff shortages.

Mr Moyane responded that the DCS would seek the support of the Committee about surveillance in cells. Information gained from such a survey could be used to understand the situation. Officials did not enter cells after hours, and could not predict what would happen. He agreed with the Chairperson that there had to be public debate on the matter.

Mr J Selfe (DA) remarked that the problem with high-level presentations was that it tended to be disconnected from the reality on the ground. Oversight talks with inmates led to questions about the protection plan, for instance. He asked where it had been implemented, and whether it would be across all provinces. He asked about gang management. The DCS had in fact admitted that after lockup, the gangs were in charge. That could be from four in the afternoon till seven in the morning.

The Chairperson likewise asked about the gang management strategy.

Mr Zach Modise, Chief Deputy Commissioner, DCS, replied that the Department had developed a framework that would be discussed with stakeholders. Gangs were being dealt with. The gang management strategy had been disseminated to centres for the development of region specific strategies. There were variations between regions in the way that gangs operated. Gangs in the Western Cape were quite different to those in any other region. He noted that the National Commissioner had alluded to the abuse of other offenders. One reason why super maximum facilities were necessary, was so that gang leaders could be taken to a place where they could be dealt with. The Chief Security Officer worked with the management of information systems. The prevalence of gangs was being addressed. There had been good results but gangs were still there.

Mr Selfe cautioned against analysis paralysis. The Committee wanted time frames, and information on how many gang leaders had been identified. Closed circuit television could compensate for the lack of ability to patrol after hours. Cameras could be used to get on top of gang strategy.

The Chairperson agreed that time frames and figures had to be brought to the Committee.

Mr Moyane answered that identification of gang members was proceeding. In August, 27 gang members from Barberton had been sent to Kokstad maximum security centre. A core of people who would be responsible for intelligence gathering, was being established. That was a difficult task, as there were 234 centres in all. Gangs were being investigated and members identified.

Mr Selfe referred to the policy of zero tolerance. In terms of the Jali recommendations, there had been 902 cases of misconduct. There had been 46 dismissals. 217 officials had either resigned, or were pensioned or deceased. The Department had to report how many officials from various centres had been implicated. There had been escapes from Pretoria C Max some years before. He asked what sanctions had been applied against which officers. When there was a lack of specific information, claims of zero tolerance fell on barren ground.

Mr Moyane conceded that zero tolerance was a constant challenge. A team had to be trained to ensure compliance with the principle. Security and intelligence capacity could be built in cooperation with Defence.

Ms W Ngwenya (ANC) remarked that there were challenges of implementation. The DCS made nice presentations but little was implemented. The Jali Commission had recommended that first time offenders be separated from more experienced ones. She asked if that was indeed happening. Oversight had revealed that they were being mixed in with the rest.

Mr Modise replied that the inmate protection plan would address first offender vulnerability. Heads of centres were trained to identify vulnerable persons. The DCS planned for a first offender facility in each region.

Ms Ngwenya drew attention to the establishment of an Interdepartmental Task Team to deal with overcrowding. She asked when the task team would come to the Portfolio Committee. Overcrowding was commonly witnessed on oversight visits. There were many awaiting trialists who were being held in custody for an inability to pay R300 bail.

The Chairperson likewise asked for a report on the task team to deal with overcrowding.

Mr Modise responded that there were no specific centres for first offenders yet, hence units were being sought in existing centres that could house remand detainees, to address the overcrowding problem. Overcrowding was prevalent in the majority of regions, and it was not just a DCS problem. The Justice cluster had begun the previous year to develop a strategy for remand detainees. There were currently 50 000 of them.

The Chairperson remarked that overcrowding was being beaten to death. Committee members were saying that the DCS had to stop consulting and start managing. With regard to the separation of offenders into categories, he advised the DCS to send a communique to regional commissioners and to the Committee as well. The Committee would render assistance.

Mr Moyane said that he wished to express the sentiment that the DCS was being unfairly criticised. Overcrowding was a typical problem for prisons everywhere, and it was not fair to say that the DCS was not implementing measures. It was a cluster issue. It had also to be asked what the SAPS were doing about it. He did not want to draw attention away from the issue, nonetheless. The need for new centres and adherence to the Bail Protocol, needed to be looked at.

The Chairperson agreed that overcrowding required a cluster effort, but when an inmate was being held for R300 bail not paid, and the DCS did nothing, it became solely responsible. In terms of the Bail Protocol there was a direct obligation to see that such a person goes back to a magistrate.

Mr V Ndlovu (IFP) said that he was feeling frustrated. It was unfortunate that the Department did not understand. Magistrates were sitting waiting for people who had only R300 bail. There were things the DCS could do. He asked the DCS with some exasperation if the Committee was not supposed to enquire about such matters.

The Chairperson added that the DCS simply had to succeed where other departments had failed, in this instance. If Ms Ngwenya reported that 400 people with R300 bail were being held at St Albans, the DCS could expect to be hammered.

Ms Ngwenya asked about disciplinary measures against officials who had killed the brother of an inmate in front of him, at St Albans. The Committee was still waiting to hear from the DCS about steps taken. She asked how far the case had progressed, and what had happened to the officials.

The Chairperson asked for a report on the matter.

Mr Moyane replied that it was forthcoming.

Mr S Abram (ANC) expressed concern about the abuse of remand detainees by gangsters, and hoped that the sending of gang leaders to super maximum facilities, would proceed apace. The Jali Commission had recommended that officials be sensitised to deal with rape victims. He asked if officials had been trained for that.

Mr Modise responded that it was fortunate that the DCS could cooperate with the police to identify gang members and send them to Kokstad. The intelligence fraternity was helping the DCS. When intelligence was received timeously, the DCS could act. There were currently trained officials in every centre who could deal with rape victims. The SAPS reported rape. Protection was receiving 100% attention. There was every effort to comply with the Sexual Offences Act and to take all areas seriously.

Mr Selfe asked what would be done at the remand cells in Pollsmoor to separate a leader of the Americans gang from first offenders charged with nothing more than shoplifting.

Mr Modise responded that there was a database for gang leaders. Signs and tattoos could be recognised, and marks on the body registered. If such a person came in, the Head of Centre was informed. There would be speedy removal from vulnerable groups. Leaders of gangs unrecognised in the area could be more difficult to identify, and only picked up later.

Mr Abram noted that the Jali Commission had recommended the feasibility of electronic monitoring of inmate movements in centres or parole. He asked if the DCS had considered that option.

The Chairperson likewise asked about progress with electronic monitoring.

Mr Moyane responded that leaders would be briefed the following day, and that he did not wish to pre-empt that. He could disclose that it would be implemented, however.

Mr Abram expressed displeasure about the fact that the presentation had started off with a section that the Committee did not have in front of them. Everybody could not sing from the same page, as he put it. When a state department came to the Committee, integrity of information was expected. He questioned the integrity of information supplied. The National Commissioner had called for guidance and support. But there was confusion, as if the presentation had been cut and pasted. The Committee expected more. The documents for the day had only been delivered the day before. The Committee had not been empowered.

Mr Ndlovu asked about vetting challenges.

Mr Moyane answered that vetting was a cluster matter that affected all security departments. The DCS was worried about the fact that it was only being done at a low level.

Mr Ndlovu noted that Resolution 24 of 1997 pointed to dates and times. He asked if the DCS could implement it. There were 217 who had resigned or were deceased. He asked if the DCS had identified what had happened to those persons.

The Chairperson added that they owed the state money.
 
Ms Schreiner responded that Resolution 24 of 1997 had been superseded. The time period had been extended.

The Chairperson asked about 93 deceased officials, according to the MEDCOR report. He asked if their debts had been written off.

Mr C Paxton, Director, DCS, replied that debts would be recovered through the civil office of the State Attorney. The SIU would instruct a claim against the estates of those deceased.

Mr Ndlovu asked how many there were.

Mr Paxton answered that there were 217.

Ms Nyanda referred to five officials mentioned in slide10, who were off sick for long periods of time, and whose cases would be finalised as soon as they were back on duty. She asked if they were still alive or dead.

Ms Promise Khumalo, Deputy Commissioner, said that information would be provided.

Mr L Max (DA) referred to the statement by the National Commissioner that there had been five years of chaos in the DCS. He asked if current systems would ensure that the Department did not revert to that state.

The Chairperson added a question about demilitarisation.

Mr Moyane replied that there would not be any return to militarisation. It had political connotations. There was adequate leadership. The DCS did not need to depend on a command structure. The DCS took care of inmates within the Departmental mandate.

Mr Modise responded that there had indeed been chaos during the time of the Jali Commission. There was rampant unionism. People who had no friends in unions, were marginalised. There was cronyism, with favours for families and girlfriends, as he put it to the amusement of all present. He continued in a more serious vein that there had been DCS members at that time who had spoken out. He wished to state unequivocally that the DCS had improved vastly with regard to management and accountability. Officials were human and prone to error. But in the Jali years the pervading approach had been to lock down and throw the keys away. Currently there was accountability. The Department was on the right track. The DCS would comply and be in charge as well, and also rehabilitate. The Department was headed in that direction.

Mr Max remarked that zero tolerance actually applied not so much to the abuse of power, as to mistakes. Critical management positions in the DCS were vacant. Oversight had revealed that Chief Deputy Commissioners had to fill the vacant posts of Regional Commissioners. The result of disciplinary actions was affected by the fact that there had to be compliance with the Labour Relations Act. He had been hearing reports of senior members who had been found not guilty on charges against them, who had not been reinstated. It seemed like the kind of situation where superiors would say that there had been a breakdown in communication. But there could be other reasons.

Mr Moyane responded that the DCS was not a vendetta organisation that revolved around personalities. Disciplinary actions complied with the law.

Mr Max asked about the code of conduct unit, and whether that code had been delegated down. He asked if commanders really owned that code.

Ms Schreiner replied that the Code Enforcement Unit was a centralised unit that investigated serious maladministration and corruption. The code of conduct was being enforced on all levels. Line function management was held responsible for that. A central unit had been created to avoid regional distraction.

Mr Moyane added that there would be compliance with the law with regard to abuse of power. The DCS would act.

Mr Max referred to slide 10. He noted that 93 of 419 officials who had received misconduct warnings, had died while still employed as members. He said that crime was crime whether still with the DCS, pensioned or deceased. He asked about the status of the criminal investigation.

Ms Schreiner replied that she did not know which of the 93 died when. The Committee could be given a breakdown. The Department was taking another look at people who had not signed an admission of debt, but were acquitted in a court.

Mr Paxton added that all 702 Medcor cases had originally been handed to the Scorpions, and that investigations were still underway.

 Mr M Cele (ANC) asked about the Admission of Debt (AOD) policy.

Mr Paxton replied that there had been a long delay in recovering money lost to the state in the Medcor cases. 702 members had been implicated, and there was a long delay between 1997 and 2001. In the management areas of Durban and Pietermaritzburg, delays had been on account of misconduct having occurred long before. The usual outcome of signing an AOD was to receive a suspended sentence in a criminal court.

The Chairperson asked if it was still like that. It came down to signing an admission and being absolved.

Mr Paxton replied that it formed part of the policy of zero tolerance to corruption and fraud.

Mr Cele noted that slide 12 mentioned the involvement of officials in gangs. The DCS had said that gang members were being transferred. He asked what the situation was with regard to officials.

Mr Moyane answered that the Committee had discovered on an oversight visit to Kimberley centre, that an official was a gang member. Mr Modise was tasked to deal with the matter. It proved impossible to obtain a name. It was hard to get a whistle blown on an official. Gangs certainly would not disclose information about an official who was also a gang member. For an official to be a gang member was a dismissable offence. It was a matter of concern if it was known that some official was a gang member, but no name would be disclosed. If gang membership was discovered, an official would be dismissed. Officials with gang membership was the kind of thing that contributed to public insecurity. The Chief Security Officer had to be on the lookout for that.

The Chairperson warned the Department that if the Committee picked up that officials were on the payroll of gangs, they would see to it that DCS managers get dismissed.

Mr Cele asked about a recruitment agency, and what HR in the Department was doing to recruit staff.

Mr Terence Raseroka, DCS Deputy Commissioner, replied that the recruitment agency was not ideal. HR challenges were admitted. The calibre of people in that branch was questionable, with 90% of them being officials. There was no professional human resource contingent. A robust strategy was required to recruit, to deal with challenges, and to mitigate. Natural attrition was a constant in the DCS. 120 people were appointed each month, but 100 per month left the DCS. A professional recruitment agency was needed.

Mr Moyane concluded that there would be continued improvement. New leaders had been appointed. He introduced Deputy Commissioner Promise Khumalo and Assistant Chief Deputy Commissioner G Lembethe. Due attention would be given to challenges.

The Chairperson concluded that it was to be hoped that a painful chapter in the history of the DCS had been buried on that day. But challenges like gangs and corruption were there to stay. The Portfolio Committee refused to be apologetic about their impatience when the Department would not listen. Since the present Committee had started its term, South Africans had approached it to solve problems. The Committee picked up as much frustration as the Department did. When the Committee asked for something and the Department did not come back about it, trouble could be expected. The DCS was dealing with an activist Portfolio Committee. Mr Abram had insisted on the quality and timing of information. DCS reports were reaching the Committee too late. If documents were delivered on Monday, members would only get them on Wednesday morning, seeing that Monday was a constituency day for them. He asked that documents be made available seven days ahead.

Amendments to DCS regulations
The Chairperson referred to the recent briefing on amendments to DCS regulations. Regulations were the prerogative of the Department. The amendments to medical parole regulations had to be adopted by the Portfolio Committee. The secretary could draft a report on the Committee’s views on medical parole regulations, and then amended regulations 29A and 29B could be formally adopted.

Committee programme
The Committee would talk to stakeholders about the 7 day establishment the following week. The unions had been invited to brief the Committee. The question was whether the 7day establishment was working. On the following day, the DCS would talk about the parole regime as it was felt that there was no consistency. The question was if the Case Management Council was ready to commit. The Department had to conclude on the impact of 7 day establishment, and whether the issue merited looking at again. On 20 September, the Committee would engage with stakeholders about torture. Stakeholders would include the Human Rights Commission (SAHRC), the Judicial Inspectorate and the Civil Society Prison Rights Initiative (CSPRI). On the next day the Committee would engage with the National Council for Correctional Services (NCCS), to determine what they did and what their functions were. The Committee would engage with the Department about torture.

Mr Selfe referred to slide 13 of the DCS presentation for that day. When it came to DCS consultation with non-government organisations, there was a credibility gap. He suggested that the foremost NGOs engaged with prison rehabilitation be invited to tell the Committee about their frustrations.

Ms W Ngwenya (ANC) said she agreed with Mr Selfe. During the September programme, the Committee had to look at oversight. The Committee needed to go back to see that promises were kept.

The Chairperson noted agreement with Mr Selfe. The Committee did not give jobs but there was an opportunity for partnership. September was tied up, but October could be used for oversight. Administration, Human Resources and infrastructure at Umtata and St Albans had to be looked at. He proposed that what had to be done until recess should be adopted, and other proposals factored in later.

The Committee programme was adopted.

Adoption of Minutes
The Committee adopted the minutes of 15 June and 24 August 2011.

The Chairperson adjourned the meeting.