Parole, Release and Restorative Justice: Minister & National Council for Correctional Services

Meeting report

National Council for Correctional Services (NCCS): Minister’s introduction
Hon Nosiviwe Mapisa-Nqakula, Minister of Correctional Services, provided some context to the National Council for Correctional Services (NCCS). The NCCS was established in terms of the Correctional Services Act (the Act) and had existed in one form or another since 1982. It basically fulfilled the role of advising the Minister. The NCCS had to advise the Minister, on request, about a development policy for correctional centres. The Minister had to refer draft legislation to the NCCS for advice. The National Commissioner of Correctional Services had to provide information for the NCCS to function. The NCCS was empowered to examine any aspect of the corrections system, and could fulfill any other function ascribed to it.

The Minister had to appoint eighteen members to the NCCS. The current members would serve until 28 February 2015.

There were three categories of appointment: namely, appointment by the Minister in consultation with stakeholders, appointments without consultation with stakeholders, and appointment in consultation with Parliamentary Committees. Its judicial appointments included Judges Siraj Desai and Judge Aubrey Ledwaba. Judge Desai had chaired the NCCS for the preceding ten years.

The Minister noted that during its existence, the NCCS, following its advisory role to the Minister, had advised on a range of policy issues, including the role of public education about parole and social reintegration, the training of parole board members, and profiles of those sentenced to life imprisonment.
NCCS had also advised on draft legislation around the Green Paper and the White Paper on Corrections. It had further given advice on centres of excellence and parole boards, and a policy framework for medical parole.

There had not been any recent referrals to the NCCS in relation to the legislative imperative to examine any aspect of the corrections system.

Under the category of “other function determined by section 76 of the Correctional Services Act”, there had been decisions made by the Review Board, to consider those sentenced to life imprisonment and make recommendations to the Minister. There had been decisions about the implementation of the Van Wyk judgment. The Minister noted that she would pronounce on that.

There was a challenge regarding administration of the NCCS. There was currently an office in Pretoria. There had been discussions with the Treasury about remuneration. Policy guidelines were very rigid. The NCCS members had to be properly remunerated for their contribution.

Discussion
Mr J Selfe (DA) remarked that the legal mandate of the NCCS was clear. It had a specific function that was pertinent to correctional services only, but it could affect other Departments. He noted that the Department of Justice and Constitutional Development needed to be involved in discussions on the challenges around minimum sentencing. The Committee had grappled with the meaning of “release date” as contained in the Act. In the Waterkloof matter, two of four offenders charged with the same crime had been released, and the other two had not. There had been confusion about the release date, on the part of the judicial officers, and there were also conflicting court judgments. This confusion had to be cleared.

The Chairperson asked about the relative weight in parole of restorative justice aspects, noting that the Portfolio Committee had addressed a letter to Judge Ledwaba about this matter. When a victim was opposed to the granting of parole for an offender, the question was how much weight this carried. At Leeukop Correctional Centre an inmate had been recommended for parole, but that decision was reversed by the Department of Correctional Services (DCS) on the eve of his release, because the family of the victim was opposed to the release. In this instance, it was clear that the victim’s family would never be prepared to move from this stance. However, in the same facility another inmate who was also guilty of murder had received parole. Both offenders had satisfied all other requirements. In the first case that he mentioned, it was decided to defer the decision for another six months, but it could not realistically be expected that the family would ever be willing to reconcile. Another offender had been sent from Leeukop near Pretoria to Mthatha to reconcile with a family. He asked if the attitude of victims or families of victims could be seen as a real challenge, to the Parole Board and to the NCCS.

The Minister noted that it was better to have names of parole applicants so that their record could be traced. Often, officials did not give the full information and reasons for the denial of parole. That was especially true of those sentenced to life imprisonment. There had to be familiarity with the case, including an exact name. However, she could say that the restorative process did not determine the outcome of parole applications, but all those sentenced for life had to engage in this process. In respect of the profiles she received, families had never been contacted, especially when the crime had been particularly gruesome. However, she felt it was important to go back to them.

Judge Siraj Desai, Chairperson, NCCS, added that he was aware of the case mentioned in Leeukop, although he was not familiar with the specifics. He noted that restorative justice was a policy, but it was not overriding, but was only one of a number of factors. He cited an instance where a woman had killed her husband with a crossbow. His daughter submitted that there had been an accomplice to the act, and on the basis of that submission, the family was opposed to release. It was decided to allow a period of six to twelve months for the family to reconsider, and for mediation to take place. Mediation was a key element for effectiveness of restorative justice. The seriousness of an offence was important when release was considered, and here he explained that this was not to do with the sentence that had been imposed, but rather with giving consideration to the likelihood that the person might re-offend.

Judge Desai also indicated that in a matter from KwaZulu Natal, the sentence imposed on the offender had been 30 years. A petition was received from the community objecting to release. The reaction of that community had caused the Chief Deputy Commissioner Mr Modise to approach the NCCS. It was resolved not to reverse the decision to release, but to suggest a six month period for reconciliation and mediation between the community and the offender, since an offender had to be released into an accepting community. In that respect, the DCS was, legally speaking, in a different position to the Department of Justice and Constitutional Development (DOJ).

Judge Desai then cited another instance where an offender was released, because he had conformed perfectly to all requirements for release. However, it came to light that the community was not yet ready to forget that he had killed a community member, in a faction fight, twenty years previously. He therefore stressed that all relevant factors, not only the factors relating to the offender, had to be weighed up. . The DCS appointed mediators if a reconciliation period was decided upon. It was not only a matter that an offender must be eligible for release, but also of whether there was a possibility for successful re-entry of that offender into the community. Release was a difficult task, and he did not envy the Minister, who had to accept responsibility for it under the current dispensation.

The Judge continued that when a person had offended seriously, and a life-sentence was imposed, there had to be certainty, before releasing that person that s/he would not do so again. The court had misunderstood the implications in the Van Vuuren judgment. It was a cruel truth that under the old dispensation, the death penalty had been relied upon to remove people from society. Some people simply could not return to society because they were too dangerous, and that was the reason why long  sentences had been instituted. However, periods such as 20 to 25 years were only guidelines. There were cases of people, such as paedophiles who had murdered, who were not hanged when the death penalty was in force, for various reasons, but there was no guarantee that such a person would not re-offend. What was needed was a collective view from all walks of life, so that charity could be shown.

The Chairperson noted that the inmates in the Leeukop matter were not sentenced to life-imprisonment. He noted that the two names were Essop Kahn and Siyanda Mapasa. The Committee was interested in the principle of the relative weight of restorative justice aspects.

Judge Aubrey Ledwaba, NCCS member, added that contacting the victim was an important aspect of the restorative justice process. The widow of Chris Hani was never contacted during the parole process. It was essential to get particulars of the victim when courts passed sentences.

Judge Desai said, in answer to Mr Selfe’s point about the necessity to involve the DOJ, that previous NCCS councils had not interacted with that department, but the current NCCS did do so. He agreed that the minimum sentencing regime was problematic. The impact of massive sentences was apparent, and it led to clogging of the correctional services system. A reappraisal was needed. The number of those sentenced to life was now much greater than in previous years, and there were consequences to this, and little hope for people sentenced to 20 or 25 years. There was a need for interaction.

Judge Desai also agreed that there was some ambiguity about the exact meaning of “release date”. In an earlier judgment, the court held that the release date was the date on which an offender first would become eligible for parole. In that case it was taken to be one sixth of the sentence. However, the law had subsequently been amended, and the date when an offender would first be considered for release was deleted from the Act. The DCS was currently addressing the uncertainty. There would be a review of the Waterkloof case, which dealt with that interpretation, to reach finality.

Judge Desai noted that decisions about the release of lifers had become the sole responsibility of the Minister of Correctional Services, as mentioned earlier, whereas previously the Minister had been advised by the NCCS. The NCCS included judges and psychologists, and was able to consider a variety of factors pertinent to release.

Judge Desai also remarked that the Van Vuuren judgment had “taken the rug from under the feet” of the Council. A careful calculation of cases for those sentenced to life sentences (lifers) was no longer possible.

The Minister noted that a major challenge with regard to parole was the lack of standard operational procedures. Inmates often complained that the DCS would not agree to their applications for transfers. The fact was that a transfer was often requested in order to appear before a parole board that had a reputation for being “soft”. The Waterkloof case was not the only one where people with similar sentences had been treated differently. There were some lifers who had appeared before parole boards as a result of the Van Vuuren ruling, whose peers had been released a year or two years earlier, and they would raise this issue. There were other cases where a minimum sentence of 30 or 40 years had been given, but the Van Vuuren ruling allowed consideration of parole for lifers after 20 years. There were also cases where the sentence had been 40 years, with the Judge adding a provision that parole eligibility would only be reached after 25 years, and the Minister had received petitions in these cases.

The Minister related a case in KwaZulu Natal where an offender was found guilty of raping a young girl. The Judge had added a remark, when sentencing, that this man should not be released without there being proof that he was no longer sexually active. The man had asked the Minister to allow the Department of Health to castrate him, but her Ministry did not have the right to do that. The offender had served 15 years, but there was no agreed-upon way for him to prove that he would be sexually inactive., so the judge’s stipulation made it difficult for parole to be granted. There had to be engagement with the Department of Justice on such matters.

Mr V Magagula (ANC) said that during an oversight visit, the Committee had encountered lifers who claimed that they should not be in prison, and had apparently got hold of a list of names of those sentenced to life imprisonment who were eligible for release.

Mr Magagula remarked that the legacy of the former government was still being seen, and some of the longer sentences of 25 to 30 years had been handed down because the offenders were black and, consequently, sentenced severely. Some inmates had appeared before the Truth and Reconciliation Commission. Their community were prepared to accept them back.

The Minister responded that after the Van Vuuren court ruling there had been an announcement of the implications of the ruling on eligibility, and the intention of this was to alert those who might be eligible to come forward in order to create a list of names. She noted that this press announcement did not in fact state the names of those who were eligible, but merely stated who would be affected by the ruling.

The Minister said that there had been times when she could not see herself surviving the task she had taken on. It was emotionally draining to visit centres. In her interaction with individuals, she had to take positions that could offend the rest of the people in South Africa. Currently she had to detach. There were inmates who should get parole, but it must be recognised that there were also those who could not be rehabilitated, if one studied the case profile. Such people made themselves out to be good individuals, but she had had to say, to many individuals, that whilst she wished she could help, the actions of the offenders made it impossible for her to do so. She indicated that a person might not, for instance, disclose that he had strangled another inmate in the previous year, in the correctional centre, and these issues only came to light when the full profile was studied.

The Minister told Mr Magagula that the TRC amnesty committee had made remarks that sentencing in the past had been too harsh. It was agreed that several people should not be in correctional centres, but because no political motive could be proved for their crimes, the TRC had to send them back. The DCS Corporate Services had to pronounce on the matter.

Judge Desai also responded to Mr Magagula that he had been on the NCCS since 1996. He agreed that there were nuances in sentencing. Certain judges carried over racist prejudices into their sentencing, and whilst the NCCS tried to ameliorate, that was not easy. Where there was a sense that something was wrong, the Council had tried to soften the blow.

Judge Desai continued that some of what the Minister had said about being eligible for parole consideration had been “lost in translation”. The operative word was that consideration would be given, and this did not mean that an offender had to be considered for parole, no matter what the other circumstances were. A “life sentence” in South Africa meant that person should be imprisoned for the rest of his or her life. However, a lifer could be considered for parole. He noted that it had been observed by the Jali Commission and by several others visiting correctional centres that offenders tended to give their own version of events, putting themselves in a good light. He personally had witnessed hundreds of misrepresentations. He agreed that all the factual circumstances, including the initial crime for which the offender was convicted, had to be examined. The views of the sentencing judges was no longer so important after a time lapse of 20 years.

Mr Selfe remarked that he agreed with Judge Desai, that the Van Vuuren judgment took the wrong approach. It imposed a burden on the Minister, to which everyone was bound. The current situation was problematic for the Minister. There were some offenders, who nominally had sentences shorter than a life sentence, yet would have to be imprisoned for longer. The Minister had said that there was interaction with the Portfolio Committee on Justice and Constitutional Development, and he hoped that the executive would also join the interaction. There were many problems related to the execution of policy. Section 73 of the Act provided a proper definition of the release date. Problems could be resolved through clarifying the legislation.

Judge Desai responded that the Van Vuuren issue was indeed important, and an amendment of the legislation had to be considered. The implications of the Van Vuuren ruling were far reaching. The majority judgment could cause problems 20 years into the future. The minority judgment had been correct. There was also the possibility of rewriting the parole legislation entirely, and having that approved through the Constitutional Court.

Ms W Ngwenya (ANC) remarked that she supported an interaction with the Portfolio Committee on Justice.

The Chairperson advised that a meeting should be called, with that Portfolio Committee, and the DCS, to discuss parole matters.

The Minister remarked that Case Management Committees (CMCs) were the a weak point in the DCS, and no matter how good the parole boards might be, a poor CMC would cause problems. There were cases that ought never to have come before the parole board, as the CMC report would show that there was not sufficient reason for that case to come to the parole board. There was a lack of capacity  in the CMCs. A political decision had to be made to have legal practitioners included in the parole boards. They could help to draft a profile, which the DCS officials could not do. DCS Corporate Services and Human Resources units had to look into the possibility of bringing in legal practitioners. Legal skills, in a full-time capacity, were needed in the DCS.

The Chairperson noted that this Portfolio Committee had a practice of submitting its agreed year plan in advance, and it was a requirement that, in preparation for any hearings, the Portfolio Committee would write to the Department and ask it to submit the necessary documentation, seven days before the hearing. There was supposed to be a discussion, on that day, of parole specifics, like the Mark Crossley matter, but information had only been received by the Committee on the previous day, despite the fact that the DCS was aware of the matters, from February 2011. He asked the Minister to intervene on behalf of the Portfolio Committee, to protect the integrity of Parliament.

The Minister responded that she experienced similar problems with the Department, on a daily basis. The DCS was simply not used to being accountable. She had told the National Commissioner to ensure that his subordinates accounted to him. She needed information in order to take actions, but had noted that it was necessary to put pressure on the officials in the DCS. She had the impression that maybe the Department did not want her to interrogate reports. There had been “a big fight” at a management meeting the week before, when she had wanted budget vote information and did not get it. She did not want to micromanage the DCS, but she had to have the information. For the preceding two years she had to get the DCS management to “camp in Cape Town” to prepare for the budget vote, which would be on 16 May. The Department was slow to give information for her budget speech. There seemed to be a culture in the DCS that resisted the granting of information. The DCS had to wake up and do differently. There had to be accountability. Information was power, and the DCS seemingly wanted to keep it to themselves. It was not proper to try to work on a need to know basis. She would intervene and speak to the National Commissioner, and she noted that she had read media reports on information that was not given. She reiterated that the culture of not reporting was deeply rooted. Some officials were slowly departing from that, but it was difficult.

The Minister concluded with an appeal to the Portfolio Committee to go on a road show and plead with crime victims to come forward. There were, for instance, women who had been raped but did not want to report it, and some people found it hard to go back to the past. It was necessary that those guilty of crimes against women and children, in particular, not be considered for parole before restorative justice had run its course. Victims had to be heard, and to do this, they had to come forward to strengthen the restorative justice process. There had to be public awareness programmes. Good people had been appointed to parole boards, but they could not make an impact on victims. Often, the victims simply did not want to face the person again, and were under the impression that they would be forced to confront them. Politicians should be placing emphasis on, and advocating victim empowerment, and the Portfolio Committee could be better received.

The Chairperson asked the Minister to indicate a suitable date for further engagement.

The meeting was adjourned.