Department of Correctional Services & Judicial Inspectorate for Correctional Services Annual Report 2011/12: Submissions by Auditor-General and civil society stakeholders

Meeting report

Submission by the Auditor General of South Africa
Mr Musa Hlongwa, Auditor-General of South Africa (AGSA) Business Executive, pointed out with reference to supply chain management, that the Auditor-General (AG) had found people in service of the Department of Correctional Services (DCS) who had a private or business interest in certain contracts. There were deviations from competitive bidding, and a contract had been extended without the approval of a delegated official. The DCS received an adverse opinion on predetermined objectives, because of lack of validity, accuracy and completeness of reported performance relevant to performance indicators. Under material errors /omissions in the Annual Financial Statements, material misstatements resulted in the DCS receiving a qualified audit opinion. It was noted that the accounting officer did not always maintain effective, efficient and transparent systems of financial and risk management, as well as internal controls.

Mr Solly Jiyana, Senior Manager in AGSA, noted that there were inadequate measures in place to prevent abuse of sick leave. There was a lack of IT and project governance frameworks and key IT positions were still vacant. The Department had under-spent its budget by R893 million. The accounting officer did not always take effective steps to prevent irregular, fruitless and wasteful expenditure.

Discussion
Mr J Selfe (DA) asked about the recommendations column in the submission. It was not a regulation of the Public Finances Management Act (PFMA) that people be held accountable for implementing recommendations. But the DCS had received a qualified audit for 17 years running, and the question was when certain recommendations would be implemented.

Mr Hlongwa replied that AG recommendations were audit recommendations. It was left to the DCS management to come up with plans. They had to commit themselves and a commitment also had to be secured from the Minister. There were follow ups on implementation of recommendations. The DCS was held accountable, in the case of maladministration, through recommendations to management. The message was that if the DCS persisted, matters would be escalated to the Committee, the Standing Committee on Public Affairs (SCOPA) and the Audit Committee.

Mr Jiyana added that the management report categorised matters requiring immediate action, and those for which 12 months would be granted.

Mr Selfe referred to supply chain management, and deviations from competitive bidding. The DCS had disclosed the day before that they had used the Independent Development Trust (IDT) for a R500 million fencing contract. This had not been procurement through a competitive tender. He asked about regulations for competitive bidding for contracts over R500 000.

Mr Jiyana responded that the proper process for contracts over R500 000 was to invite applications, evaluate them, and make a formal award. Except in the case of an emergency, supply chain management had to be approved.

Mr L Max (DA) said that the AG dealt with issues that the Committee did not deal with. He asked how it was possible to make mistakes of such magnitude. He asked the AG if they were not legally responsible to refer criminality and maladministration to the Hawks or the Public Protector, if they came across it.

Mr Jiyana replied that criminality was reported to the DCS management. There was an investigations unit in the AG that checked for fraud. DCS management would also be asked to investigate.

Mr Max noted that there was evidence on page 16 that the DCS had not complied with policies that said that payments had to be made within 30 days. Yet, some companies had been paid in advance. There was a contradiction.

Mr Jiyana replied that the AG did not check on accounts not paid within 30 days. The AG also did not check the criteria used by the DCS to pay some companies in advance.

Ms W Ngwenya (ANC) said that there had to be time frames for implementing recommendations. There were people classified under security who were doing HR work in the DCS. There had to be time frames, or the situation would be the same the following year.

Ms Ngwenya referred to contracts with Sondolo and Pezulu.

Mr Jiyana replied that the supply chain process with Sondolo had been correct. There was information with the Hawks that could not be checked.

Mr Max referred to people mentioned on pages 4 and 5, who were in DCS service and prohibited from doing business. He asked if that was an assumption or a fact.

Mr Jiyana replied that members of companies who did business with the DCS were checked to see if DCS members had declared their membership of such companies, if that were the case.

The Chairperson noted that it would be discussed with DCS management if it was found that a member had a stake in a company. It was said that there would be an investigation. The question was why there was a need for investigation. The Committee Secretary had the names of those implicated. It was clear that the basics had not been done. Internal audit and the Audit Committee had to pick things up. There had been things happening during their term. It had to be raised with the oversight committee.

The Chairperson asked if the targets for reducing the level of deficiencies had been reached by the DCS.

Mr Hlongwa replied that it was not the case. There had been no noticeable improvement during 2010/11 and 2011/12.

Submission by the Civil Society Prison Reform Initiative (CSPRI)
Dr Lukas Muntingh, Co-founder and Project Coordinator of CSPRI, noted that the JICS was funded by the same organ that was the object of its oversight, the DCS. That meant that the independence of the Judicial Inspectorate for Correctional Services (JICS) and the perception thereof could be compromised. He recommended that core administrative functions be placed within the JICS. The JICS had been providing more detailed reports on unnatural deaths since the 2009/10 Annual Report. It had found that in the three-year period form 2009/10 to 2011/12 not a single DCS official implicated in the death of an inmate had been prosecuted. The pervading lack of criminal investigations perpetuated impunity. It was ultimately in the interest of the DCS that deaths and assaults were properly investigated and perpetrators held criminally responsible.

The CSPRI suggested that the mandate of the JICS be expanded to give it investigative powers similar to that of the IPID for the SAPS, where it pertained to deaths in custody or allegations of torture. It was suggested that the Committee request the JICS to adjust the format of future Annual Reports to clearly reflect its recommendations to the DCS.

Submission by the National Institute for Crime Prevention and the Reintegration of Offenders (NICRO)
Ms Venessa Padayachee, NICRO National Manager for Advocacy and Lobbying, noted that NICRO was concerned about the independence of the JICS, particularly because the appointment of the Inspecting Judge was recommended by the Minister of Correctional Services, whereas it was, rightfully, supposed to be done by the President. NICRO encouraged the Inspecting Judge to monitor the implementation of Section 19 of the Correctional Services Act that children in prisons have access to compulsory education and care services. There was concern about the fact that there was only one Independent Prison Visitor for 850 cases. Neither the DCS nor the JICS Annual Report mentioned the need for exercise for inmates, as had been mentioned in reports of previous years.

The strengthening of the legal Services Directorate had improved the quality of information. It was encouraging that the JICS had changed its domain email address from that of the Department, to enhance independence. A concern about the misclassification of deaths as “natural”, rather than “unnatural”, remained. Cooperation with the DCS was good, but response times from area commissioners to regional commissioners were slow. The presence of children in prisons was perhaps not a JICS issue, but the Justice cluster had to look into it.

Time and again remand detainees were leaving prison when found not guilty, but they were damaged physically and emotionally. NICRO supported the JICS’ view that overcrowding could not be used as a general excuse for inadequate treatment or undignified conditions. JICS inspections had showed a lack of respect for the rule of law in correctional centres. There were allegations of rape and torture of inmates by officials, and unnatural deaths. Parole processes and releases delayed because inmates had not completed programmes, was unacceptable. The PC was asked to address the issue of inmate suicides that happened during lockup.

Ms Padayachee apologised for the critical nature of her comments.

Discussion
The Chairperson told Ms Padayachee that she was being too nice. It was not every day that civil society had an opportunity to have a go at government officials. If the JICS was failing, it had to be stated. When the Committee speaks with them tomorrow, they want the JICS to know what people on the ground were thinking about them. After 2009, there had been many prison deaths about which nothing had been done. One JICS inspector to 800 inmates could not be effective. The question was what the real power of the Inspecting Judge was, and whether the demand for an hour of exercise per day for inmates, could be enforced.

Mr Max asked if the lack of safe custody for inmates was the result of staff shortages or a lack of discipline.

The Chairperson noted that the DCS would be raising that matter.

Mr Max asked if the DCS had the HR capacity to investigate properly. There was not enough push from the JICS.

Mr Munitingh replied that officials had been implicated in unnatural death, with no prosecution. The CSPRI did not know why the Public Protector (PP) was not prosecuting them. A door had to be opened. With regard to safe custody he noted that a summary of death through assaults by officials pointed to group beatings with batons. That went beyond a lack of discipline, it was sheer brutality. Investigation was not within the DCS mandate. There had to be a review. The DCS chose not to act. It had to be possible to hold them accountable.

Mr Max remarked to NICRO regarding children in prisons, that there were children and children. Age groups had to be investigated. There were children who could not be released. Their own parents could not control them. There had to be differentiation between age groups.

Ms Padayachee responded that all persons under the age of 18 were defined as children by the law. It was relevant that 27% of them were in for economic crimes. Much could be done by way of diversion from custody.

Ms Ngwenya remarked that NICRO had said nothing about assisting with DCS programmes. The community was not aware of NICRO’s work.

Ms Padayachee replied that NICRO had programmes for diverting children from custody. 30 000 children per year received help. The needs of children were looked at as well as drug experimentation and addiction. Diversion and non-custodial options worked. NICRO offered that service.

Submission by the Public Servants Association of South Africa (PSA)
Mr Pierre Snyman, Director of PSA, noted that overcrowding at centres and lack of staff worsened working conditions for DCS employees. The PSA tabled an allowance formula for officials in centres with more than 130% overcrowding and staff less than 80%, but the DCS would not negotiate about that. The DCS led the Justice and Security cluster by far when it came to sick leave. The PSA saw that as the result of unfavourable working conditions and unfair labour practices, but the DCS regarded it as abuse of sick leave. The DCS took every favourable arbitration award on review.

DCS members were suspended without a disciplinary process instituted timeously. There was underproduction at prison farms because of the new shift systems that resulted in a shortage of staff. Workshops underperformed because the DCS was struggling to retain artisans. The condition of prison buildings were deteriorating. The high turnover in senior management over the preceding years did not contribute to an effective management structure and institutional memory was lost.

Submission by the Police and Prisons Civil Rights Union (POPCRU)
Mr Nkosinathi Theledi, General Secretary of POPCRU, stated that there was a lack of transparency in the DCS, which was related to maladministration, corruption and fraud. The DCS management structure was too top heavy and a flatter organisational structure was needed rather than the many layers of command and control currently in existence. POPCRU was content with the statistics on unnatural death, and applauded the implementation of a gang management unit. However, the shortage of professionals was disturbing. The DCS was encouraged to work closely with NGOs that had a better link with communities that parolees were released into.

Mr Theledi was critical of diversion of funds into Public/Private Partnership (PPP) prisons. It contradicted the Batho Pele principle. The building of new prisons at Van Rhynsdorp and Ceres was still not completed and perhaps this was because the project was allocated to a single service provider that did not have the necessary capacity.

Discussion
Ms Ngwenya remarked that the Committee had asked about sick members since 2009. She asked if it was to get money.

Mr Max remarked that the Submissions by the PSA and POPCRU were consistent with the AG findings. The DCS “did not give a damn” about its staff. The attitude of the DCS was like a parent who went into arbitration with his children about giving them food.

Mr Max asked if there was a policy regarding suspension that there had to be a disciplinary hearing within 60 days.

Mr Snyman replied that the resolution of 2006 governed discipline. Members were not supposed to be suspended for longer than 30 days. There were delays to institute proceedings. PSA advised its members to register a grievance if a case was not solved within 30 days. 119 people had been dismissed in the current financial year. 441 had been suspended but not dismissed. The question was why.

Mr Max asked what grievances of members were about.

Mr Snyman replied that there was a doubling of grievances related to implementation of the Occupational Specific Dispensation (OSD). There had been grievances before arbitration. There would be doubling of arbitration the following year.

Mr Theledi added that OSD outcomes had been taken on review to delay the process. The DCS still had a top-heavy managerial structure, and vacancies persisted.

Mr Max asked about the view of the unions on kitchen outsourcing.

Mr Snyman replied that the PSA was against privatisation. Prisoners had to learn kitchen skills.

Mr Theledi added that outsourcing of kitchens was not viable. Even outsourced work was still performed by inmates. “Tenderpreneurs” were taking government money.

Mr Max asked POPCRU why there had been deaths due to assaults by officials, when POPCRU commended their sterling performance.

Mr Magagula objected to kitchen outsourcing being brought into discussion. Members were not there to score political points. The aim was not to cross-question the unions. He referred to the PSA statement that centres were not as well maintained as before. He asked if “before” meant during the Apartheid years.

The Chairperson repeated that it was an opportunity for civil society to speak out. They should not feel intimidated. They had to speak their hearts.

Mr Snyman answered Mr Magagula that “before” meant before the time of the report. The PSA visited centres and spoke to members. He had asked a member a month before why the grass was not being cut. He replied that there was no money for petrol for the lawnmowers.

The Chairperson noted that the DCS had been told by the Treasury to cut costs, not staff. But cutting staff was the easiest way to cut costs. The Treasury never advised the DCS to cut heads, as they claimed.

Submission by Just Detention International (JDI)
Ms Emily Keehn, Programme Director for JDI, noted that sexual abuse had received no attention in the DCS Annual Report. The DCS was urged to adopt a framework to address sexual abuse of inmates in centres. The AR contained no information on the development of a screening tool to assess vulnerability of newly sentenced inmates to sexual abuse. The number of HIV positive inmates on Anti-Retroviral Treatment (ART) was critically low. The DCS was urged to identify and address blockages to inmate access to health care and ART. The DCS was called on to ensure that condoms were available in all centres together with lubricants.

Submission by the Institute for Security Studies (ISS)
Mr Hamadziripi Tamukamoyo, Researcher at the ISS, pointed out the need for a DCS staffing and retention strategy. The question was what was to be done about people who manipulated bids. The DCS was notorious for paying IT consultants, without an IT governance framework. They had trouble sending email, but employed IT consultants. The DCS did not take civil society seriously. The prison population had stabilised by 2008. He suggested a facility by facility breakdown of overcrowding.
 
Discussion
The Chairperson remarked that a stable prison population was already overcrowded. There was a lack of willingness on the part of the DCS to share information.

Ms Ngubane referred to the lack of ARV treatment. The question was what it was being measured against. She insisted that the DCS not be allowed to devise their own ARV policy, but had to adhere to a national policy.

Ms Keehn replied that she did not know how the DCS determined eligibility for antiretroviral treatment. The Department of health guidelines prescribed a CD count of below 350, coupled with pregnancy or TB.

Mr Magagula remarked that sodomising could not be allowed. CCTV had a role to play.

Ms Keehn replied that CCTV could help, but she did not know if it could be a deterrent. It was essential to separate vulnerable inmates from those who would target them.

Mr Magagula asked with reference to condoms, if women were safe in female centres. On oversight he had noted that two inmates had been placed in one cell. He asked what this meant.

Ms Keehn replied that sexual abuse occurred between inmates and staff in female centres. Gay inmates were held separately because they were more vulnerable. There was also the perception that they liked anal sex, which was not true.

Mr Max asked if higher HIV/AIDS figures indicated that the DCS was doing more testing, or whether there were more infections.

Ms Keehn replied that it was due to more inmates being tested for HIV.

The Chairperson said with reference to sexual abuse, that the Committee was not sure if it was good to have men in female centres at all, and vice versa. But there was a female area commissioner at Boksburg. There could not be discrimination against women to work at male centres.

The Chairperson called on NICRO and the CSPRI to make concluding remarks.

Ms Padayachee said that there were structural issues related to incarceration. Recidivism and re-integration had to be addressed. A major shift was needed. Prisons had to be viewed as a last resort. It disrupted families. Most inmates came from families that were dysfunctional and vulnerable to begin with. There were no programmes for those sentenced to less than two years, they were merely warehoused. There had to be conversion to non-custodial sentencing. The DCS were hesitant to use options, and so was the Justice cluster. The Correctional Services Act policy on sexual abuse had to be finalised. 68% of DCS programmes were offered by externals.

Ms Padayachee continued that Social Development would not give money for social reintegration. NICRO served the DCS without compensation. NICRO services were evidence based. NICRO requested a look at a resource strategy. There had to be a business plan for a funding model for halfway houses. The Department only wanted to fund administrative costs. Parole had to be improved.

Ms Padayachee noted that the DCS Annual Report did not say what had been done about a gang management strategy. It was difficult to keep track of who were in centres, because a green bar coded ID was required of inmates to be registered. There could be a special agreement with Home Affairs to provide identification. NICRO did not agree that inmates could have an option to attend programmes. Too many of them were lying idle. There were many inmates with building skills; they could be used to do things. Regarding the bad state of maintenance at centres, she pointed to the “crime and grime” connection. It was bad for staff morale.

Mr Muntingh noted that the last audit on DCS information management indicated that the situation with regard to profiles of prisoners was getting worse. The DCS was a directionless department. The Annual Report on page 179 indicated that one out five senior managerial positions were vacant. The Department proposed R4.8 billion to bring the official inmate ratio down from 3.9 to 2.7 when the prison population could be brought down by 50 000. The 18 000 additional people requested to help the DCS could result in a well resourced problem. The prison population could be reduced if the criminal justice system developed a policy framework to send fewer people to prison.

Mr Muntingh continued that unnecessary police arrests swelled the prison population. 53% of crimes that led to imprisonment were for crimes less serious than shoplifting. Mandatory minimum sentencing had resulted in 11 000 inmates with long sentences. There was inconsistency in the quality of centres. Brandvlei was run like a model prison, and not far away there was a centre where conditions were very bad. That showed that it was due to personalities, rather than policy and law. There had been fluctuation in figures related to fraud, corruption and theft. But higher figures were related to the attentions of the Jail Commission. Investigating units were not effective. The Sondolo turnstile matter testified to that. Only one quarter of turnstiles functioned. An external contractor had to come in.

The Chairperson asked what could be done besides non-custodial sentencing for sentences under 24 months, and police arrests.

Dr Muntingh replied that sentence lengths could be reduced. Fewer people were being sent to prison for longer terms. Parole administration could be looked into.

The Chairperson adjourned the meeting.