Department of Correctional Services briefing on Legal Services & Departmental Investigations Unit

Meeting report

Department of Correctional Services (DCS): Legal Services & Departmental Investigations Unit: Briefing
An apology was noted from the Commissioner of the Department of Correctional Services.

Mr Matome Malatsi, Director: Departmental Investigations Unit, & Acting Deputy Commissioner: Legal and Special Operations, Department of Correctional Services, gave a presentation on the activities of the Legal Services and Departmental Investigations Unit of the Department of Correctional Services (DCS or the Department). He stated that in 2003 the Chief Directorate for Legal and Special Operations was established, with three directorates in Legal Services, Departmental Investigation Unit (DIU) and Code Enforcement Unit (CEU).

The directorates were mandated with various functions including dealing with corruption, theft, fraud and maladministration by correctional officers, prosecution and instituting disciplinary hearings. He provided an organogram and statistics on the current posts which had been established in the units, the budget allocations and caseloads. (See attached presentation for full details).

He noted that the directorates had no problems with the allocated budget and had sufficient funds. However, one of the challenges was the steady increase in case backlogs. For example, between 2010/2011 the Department handled 403 cases, but of these, only 219 were concluded, leaving a backlog of 185.

Other challenges included the lack of capacity in the DIU and CEU. This issue of insufficient capacity had been supported by the recommendations emanating from the independent audit conducted by the Department of Public Service and Administration (DPSA) and Ethics SA, in which the conclusion was reached that the “investigation and prosecution capacity does not fit the risk profile of the DCS”.

There was a further challenge in relation to the legislative mandate. He pointed out that the DIU did not have powers to, for instance, request information from banks. Other agencies, such as the South African Police Services (SAPS) therefore had to be requested to call for the information, and this delayed the finalisation of investigations. A proposal on the amendment of the Correctional Services Act to provide for such powers was to be considered by the Department, for the necessary authorisations under section 205.

He continued that the capacity for Legal Services, both at Head Office and Regions, was not aligned with the DCS litigation risk profile. There were still specific problems with the Occupation Specific Dispensation (OSD) regime, which was making it difficult to appoint and retain officials in Legal Services.

Discussion
The Chairperson requested that the Department clarify the statistical differences between the figures provided in the presentation and those in the Annual Report. Specifically, he said that the number of misconduct cases reported differed, since the presentation only showed 285 and 118 cases, and yet the Annual Report showed 4 247. He asked what the figure of 4 247 represented, in the Annual Report.

Mr Malatsi replied that 4 247 was the total of all cases of misconduct in the DCS, regardless of category of employee, in relation to cases that fell under the mandates provided for in sections 95A and 95B of the Correctional Services Act. These included cases of fraud, corruption, and serious maladministration. The numbers in the Annual Report included all other claims of various functions, including assault on other officials and other matters.

The Chairperson asked then what percentage of the 4 247 cases involved officials, and asked how many of these cases had been concluded. He noted that the current report said that only 113 hearings were concluded. He wondered if this meant that there was a backlog of all the rest of the cases, and whether hearings needed to be conducted in all. If that was the case, then he was concerned about the implementation of the 30-day suspension rule and the need for a disciplinary hearing. He noted that the system was in a mess if the Department was not able to provide an adequate explanation in this regard.
 
Mr L Max (DA) clarified that misconduct could only be committed by officials and called for clarification that these figures did not include wrongdoing by inmates.

Mr Malatsi agreed with this.

Mr Ruben Mbuli, Director: Legal Services, DCS, clarified that the figures for cases that were provided on the slides were those concluded within the units, and this figure must be added to the numbers of cases that were being handled elsewhere, which would result in the total figures contained in the Annual Report.

The Chairperson enquired who was dealing with the other matters if the DCS Legal Services was only dealing with 113 cases. In addition, he questioned whether it was normal line-management, and who would decide who should deal with each of the matters. He asked if there was an arbitrary allocation or if there were specific guidelines provided.

Mr Mbuli replied that, in principle, discipline was the prerogative and mandate of line-management. The DIU provided a specialised support service in cases of fraud, corruption and serious maladministration. There were still instances that management could deal with. These units could be seen as a support structure, providing support to line-management.

Mr J Selfe (DA) repeated that the Department only dealt with matters concerning theft, fraud and serious maladministration. He noted the various statistics which had been provided on the number of cases reported and concluded and the Department’s success rate, pointing out that it had found 103 officials guilty, of whom 15 officials were dismissed. This resulted in slightly over 10%. He said that these units had been set up to deal with the special issues, and questioned what message was being sent out by this limited success, in terms of its approach to theft, fraud and serious maladministration.

The Chairperson asked that, when the DCS responded, he would also like to hear about the sanctions that it applied in such matters.

Mr Selfe noted that the information had been provided in the report.

Mr Mbuli replied that the DCS was not proud of the dismissals. DCS was working in general to an improved picture, and he noted that the figures on disciplinary action had dropped significantly from the previous year.  Fourteen officials were given suspension without pay, as an alternative to dismissal. If the DCS had decided to dismiss, then the dismissal figures would have been higher. The decision and recommendations were left in the hands of the person chairing the Disciplinary Committee. There was a message of zero tolerance to crimes, but the final outcome of hearings depended on the people who were chairing the panels. Once the panels had reached their decision, the DCS could not challenge it, unless it could show malice or undue influence. Decisions could not be appealed. This was one of the challenges that the DCS was facing. There was hope for more improvement on the matter.

Mr Selfe asked what the Department was doing to try to attract more qualified legal graduates. He noted that each year a number of such legally-qualified graduates were unable to find jobs.  He asked if there was a strategy to deal with the challenge.

Mr Selfe noted, from the numbers provided, that there were claims brought against the Department amounting to R37 million, and of this figure, R34.7 million of the claims related to assault, unlawful detention and pain and suffering. He asked whether these were all claims by offenders, and whether they were all contained in the amount quoted. Furthermore, there was nearly R1 million rand worth of claims of rape and sexual harassment. He asked the Department to explain where these claims arose.  
 
Mr Selfe also read out a comment in the report that the figures indicated that alleged negligence of officials played an important role in motor vehicle accidents. He asked what sanctions were in place against the officials who were involved in these alleged conducts.
 
Mr Malatsi explained that the figures mostly related to assaults on inmates by officials.

Mr Mbuli pointed out that the information in the Annual Report referred to contingent claims, so it included matters in which letters of demand had been issued only, and cases where summons had been issued, but the matters had gone no further to full-blown legal claims. These amounts had to be included for budgeting purposes. There was a need to differentiate between contingent claims and claims that actually had materialised.
 
The Chairperson noted that the report recorded liabilities paid, cancelled and received. When the money was paid, that meant there was a valid claim against the Department. He asked that there should be a focus on those amounts, as the “cost to Department”, and asked then how much the DCS had paid out.

Mr Mbuli noted that one column referred to liabilities paid/ cancelled/ reduced (see attached presentation), and did not only refer to money paid out. He said that these amounts could also include claims that had prescribed.

The Chairperson interjected, asking what the Department had paid so far.

Mr Mbuli replied that he did not have the actual figures. However, the 2010/11 Annual Report noted that in this financial year, the Department had paid nothing in respect of litigated claims.

The Chairperson sought further clarity on this matter.

 Mr Mbuli explained that in 2010/2011 there were only two cases against the Department and neither resulted in the Department paying out anything. However, the Department did report most of its losses and payments in respect of contested arbitration matters, which fell under the Human Resources division, and not under the Directorate for Legal and Special Operations (the Directorate).  He assured Members that all the money paid out had been accounted for, and the Auditor-General (AG) had expressed satisfaction in respect of the state of the finances.

The Chairperson said that the Annual Report showed that the total number of cases finalised was 200. Of these, 153 were finalised in the favour of the DCS, and 47 against. This was “litigation” and yet it was not reflected in the current presentation by the Directorate. He questioned the claims, therefore, that there was no litigation against the Department in this financial year.

Mr Mbuli replied that there had been no successful claims against the Department.

The Chairperson then noted that the Unit was supposed to protect the assets of the Department as a whole. He asked how much it had spent on legal issues specifically. He also wanted to know what advice had been given by the Directorate to management in these cases, and asked if there were instances where Management failed to comply with the advice given, and thus cost the Department money. If so, then the Committee would need to bring management to order in respect of these matters. He also wanted to know, in addition, how much was paid on legal costs, and in what circumstances. He called for the submission of a full report by the Directorate in relation to these issues.

Mr Mbuli replied that he did not have the full figures with him. He noted, however, that included in the matters reported were matters that were “just unwinnable”. The Directorate gave legal advice wherever it was called to do so. He said that the DCS maintained very high standards and was not pleased if it lost any of the cases. There had been a very high success rate. Ideally, the Directorate wanted to win everything but in some cases it must accept that that was not possible although it still set targets for a 100% success rate.

Mr Selfe then replied that this was the nature of justice, and it was not akin to rugby, where a 100% success rate may be called for! He said that it was a well-known fact that assaults did take place, and that inmates complained about the lack of justice. For this reason, he found the Unit’s aims to succeed in all cases worrying. He further raised the concern that the reason the Unit had not paid anything was because it had the expertise of the State Attorney to rely upon, and the people who sued the Department probably did not have access to equally qualified lawyers. He further asked what had happened in the Royal Sechaba matter.

Mr Max then noted the increase in the number of arbitrations over the years, and this was an indication that there was a problem with labour relations. He asked what had been done to reduce the number of arbitrations.

Mr Malatsi replied that it was true that claims arising from claims of assault, wrongful detention and other matters had increased. The laws of vicarious liability made it difficult to absolve the Department of responsibility in matters and it was necessary to train the officers to be much more responsible, given the lawsuits that the Department as a whole could potentially face owing to their actions.
 
Mr Malatsi added that the highest number of assaults had been reported at St Albans, and a programme had been put in place to train the officials on the use of reasonable force on inmates. The DCS was working on increasing awareness in the various Centres. The number of arbitrations was increasing because of the highly industrialised society. He noted the important role of management in directing various structures of the Department and said that DCS had put in place a system of holding management accountable where staff had failed to comply with policy requirements.

Mr Mbuli added, on the issue of pay-outs and success of the Unit, that most of the people who laid claims did indeed have access to highly trained lawyers and the scales of justice were balanced. The Unit did not just defend cases as a matter of course. It would check to see whether the Department had a reasonable case. Where it did, such a case would be defended, to the best of the Unit’s ability. DCS was unable simply to “pay on demand” when people claimed they had been assaulted and there was a need to substantiate the claims so as to avoid false claims.

The Chairperson noted that contingent liabilities had been accounted for by the Auditors. He asked for an accurate assessment of what was going to be actually paid out by the Department. He was concerned with the large number of contingency claims and wanted to know how much, potentially, the Department was likely to have to pay.

Mr Mbuli replied that the specific amounts would be provided in due course.

Mr Mbuli said that the Royal Sechaba matter hearing was quite heated and the judge had reserved judgment. It seemed that the judgment would not be given on time, and he noted that the tender would be expiring at the end of July 2012. He said that an interesting point to note was that the applicants had amended the claims in respect of the relief sought and asked the Court to set aside the tender award and set aside the disqualification of the respondent, and order the Department to re-advertise.

The Chairperson asked when exactly the tender was going to end.
 
Mr Malatsi replied that it would expire on 31 July 2012.

The Chairperson then noted that there was only eight months to go, and asked for the plan on this, given this pending expiry, in relation to the programme to be implemented from July. He asked if the DCS would ask for another extension of the contract, because it had failed to plan ahead, and asked that the delegates to this meeting should take the question up with management and ask management to provide a response.

Mr Malatsi replied that the question would be taken up with Management and an appropriate report would be provided in writing to the Committee.

Ms W Ngwenya (ANC) noted that there was a readiness assessment programme of all departments, and assured members that progress was being made on the allocation process.

Mr V Magagula (ANC) asked about the Western Cape issue, in which senior officials had written a public letter expressing dissatisfaction with the racial composition in the Department. He asked how the legal division was handling this issue.

Mr Malatsi replied that the DCS was a national, and not a provincial Department. The issue had been noted and was being dealt with. The rules on equity that the DCS took into account were the National Equity Policies, so the Department did not consider Western Cape in isolation. He assured the Committee that the matter would be dealt with and the Committee would be kept informed.
 
Ms Ngwenya asked what happened when a family of an inmate might lay a claim arising from the death of an inmate in the correctional centre. She asked if there were statistics on this, as well as statistics on the number of unnatural deaths in the centres.

Ms Ngwenya cited the example of the death of Mr Khanyisa’s brother, where the family had been under the impression that the inmate had been killed by officials, and yet the report showed that he had been killed by another inmate. She asked what the Department was doing in such cases and requested clarification as to who was accountable. She expressed concern over the apparent inaction by the Department. She asked what was put in place to deal with the officials who were misbehaving in the correctional centres.

Mr Malatsi said, in relation to deaths generally, that the Unit was entrusted with good governance and where reports had been made, the officers involved were dealt with accordingly. Some had even been criminally charged.
 
Mr Mbuli replied that he had no personal knowledge of the Khanyisa matter.

The Chairperson replied that the Commissioner of Correctional Services had provided a report on the matter to the Committee, and requested that the DIU look into the matter and provide the Committee with its opinion in the matter.

Mr M Cele (ANC) asked about various cases ongoing in the specific correctional centres and noted that the Units was only dealing with fraud, corruption and serious maladministration. He asked who was dealing with the other issues, and whether the officials were investigating themselves. He also expressed concerns on the numerous instances where officials had been accepting money from offenders and asked if any investigations had been instituted and finalised.

Mr Malatsi replied that the matter was under investigation, and agreed with the Committee that these matters were highly unethical, and a Special Unit would be put in place to deal with such matters.

Mr Max noted that no one had responded to issue that the disciplinary hearings were supposed to be completed within 30 days. He was concerned that if there were so many backlogs, some claims might end up becoming prescribed. As a follow up to this, he asked how many matters had prescribed, and why it was difficult for the Directorate to deal with the matters.

Mr P Killian, Deputy Director Code Enforcement Unit, replied on the 30days limits to disciplinary matters and noted that because of the complicated nature of the matters, sometimes it was inevitable that cases may take longer. However, he assured the Committee that no cases had been abandoned due to delays.

The Chairperson requested clarity on the dismissal of employees with dreadlocks, asked what the outcome was of this case, and what the Department was doing to deal with the issue.

Mr Mbuli replied that the Department had decided to take the dreadlock case go on Appeal, because the precedent set opened up serious problems in relation to the Department’s dress code.

The Chairperson asked if the Department’s decision on the appeal had been communicated.

Mr Selfe further asked if there had been any orders for cost in the matter, and, if so, what the award said.

Mr Mbuli replied that no costs had been awarded and each party was expected to pay its own costs on cross-appeal.

The Chairperson requested that the Department keep the Committee informed on the matter.

Ms Ngwenya, in IsiXhosa, reiterated that the Department must provide a full report on what happened in the cases concerning deaths in centres.

Ms Ngwenya warned that there were pending claims against the DCS arising out of claims that the inmates had been held for longer than their terms. She asked what the Department was doing to protect itself.

Mr Malatsi explained the challenge that the Department faced in terms of co-ordination with SAPS and the Department of Justice. Sometimes, some release warrants were not communicated in time and in some cases prisoners ended up staying in prison longer than they were supposed to. In these cases, the DCS would simply have to try to reach settlement on the claims.

Ms Ngwenya further asked if the Department was aware of the claim by a civil society organisation to have published books on prisoners’ rights that were being used in all the correctional centres, despite the fact that nobody “officially” knew of this book. She asked what the Department was doing to prepare for this claim.
 
Ms Ngwenya also asked what was happening concerning officials that were smuggling dagga, as this was a criminal offence, and requested the Department to provide the Committee with more statistics on the matter.

The Chairperson noted that he was aware that a Unit was being set up for inmates dealing in contraband. He was, however, concerned at the prevalence of illegal items within the correctional centres, such as cellphones, drugs, and money. He requested that the Department must find ways of rooting out these problems. In relation to cellphones, he recommended that the Department look at the possibility of making all prisons into “cellphone-free zones” and blocking all cellphone communications. The Department needed to be more creative in dealing with these matters.

Mr Malatsi replied that the prevalence of contraband and other illegal substances had been a great challenge to the Department although it was dealing with the problem. He agreed that the Unit needed to be more pro-active rather than reacting to specific instances. He added that the statistics on the smuggling of dagga by officials were provided under the misconduct section of the report. He noted that establishment of the new Unit would go a long way in dealing with this matter.

Mr Magagula raised concern over the Western Cape matter, especially given the fact that it had been senior officials in the DCS who had laid the complaint. He added that in some areas, there were reports that senior officials had opened equity accounts. These people were supposed to be leading the DCS and this move seemed to be contrary to their position. He thus asked how the Department was going to deal with this issue and what would be a possible way forward. There was a need to see justice achieved in the matter.

Mr Selfe commented that he hoped the statement made concerning the Western Cape issue did not mean that people were no longer able to access their rights in court of laws.

Mr Malatsi responded that there was a need to balance the constitutional rights of the parties involved against the needs of the Department, and special care would be taken not to trample on their Constitutional rights. However, in the event that senior officials’ actions became incompatible with the direction that the Department was taking, then this matter could be dealt with as a misconduct issue.

Mr Magagula asked for a status report on the two individuals released five months ago, as a result of findings that they had been wrongfully imprisoned, and had not been able to obtain amnesty because they had steadfastly maintained their innocence in the cases. No reports had been given by the DCS. It was quite likely that claims would be laid against the DCS for the fact that they had been unlawfully imprisoned for 18 years, and he requested a report on the matter in advance, rather than the DCS dealing with the matter only once a claim had been lodged.

Mr Selfe noted that the Department had not answered the question on learnerships, internships and recruitment of legal capacity.

The Chairperson added that the answer on capacity should not just address the capacity of the Legal Services Unit, but should be broadened to include capacity specifically in DIU. He said that if this Unit was short of capacity, it could potentially cause embarrassment to the Committee.

Ms T Hlongwane, Director of Human Resource Planning, DCS, replied that the Department was working on a robust recruitment and retention strategy. It was facing great challenges with Occupation Specific Dispensation (OSD) requirements but the matter had been reported to the Minister and was being dealt with according. DCS was requesting that the minimum requirements be reduced, especially the requirement around eight years experience. She noted, with concern, the low wages that the Legal Officers were being paid, but assured the Committee that this matter was being looked into.

The Chairperson assured the Department that the Committee could support the Department on issues if there was a need to do so.

The Chairperson said there were a number of cases involving the Unit in which the DCS had had to intervene. He cited several instances, including the issue where the Unit had only investigated the Secretary, and not the Head of Centre, in one matter. He emphasised that the DIU needed to do its job properly and not rely upon intervention by the Committee.

Mr Malatsi replied that the Unit had initially investigated the specific role that the Secretary had played but once all information was in place it was only then apparent that the Head of the Centre had played a part in the matter as well. A full investigation into the Head was then set up.

Mr Selfe asked what exactly the DCS would be asking the Committee to do to amend section 205 of the Correctional Services Act, to provide the DCS with additional powers to access bank accounts. This did have serious implications on privacy and even constitutional rights.

The meeting was adjourned.