Judicial Inspectorate for Correctional Services Quarterly Performance Report (September – December 2013)

Meeting report

Opening remarks by Chairperson
The Chairperson said that Members might be more pressurised than usual because the Legacy Report was due. The Committee’s experiences over the past five years had to be captured in the Legacy Report. This report would also serve as a handover to the Committee’s successors.  

The Judicial Inspectorate on Correctional Services was asked, over and above their report, to provide some sort of trend analysis of the quarter. This would be incorporated into the Legacy Report.         

Opening remarks by Judge Vuka Tshabalala
Judge Vuka Tshabalala, Inspecting Judge: Judicial Inspectorate, said that this meeting had been mentioned to people from the Judicial Inspectorate on Correctional Services (JICS), and they had been asked if they wished to make a contribution. During this period, visits had been made to a number of areas -- Leeuwkop, East London and Durban.  Members of the community had been present at these meetings. What was important in these meetings was that the role of JICS, and what it was doing, had been explained.  The meetings had been well received by the community.

A visit was also made to the National Offenders Cultural Festival in Durban. This was a Department of Correctional Services (DCS) function and the Judge had been invited to attend. Of importance was that the complaints being made all along about the financial situation had been alleviated. After a meeting between the Judge, Mr Mike Masondo, Acting Chief Executive Officer (CEO) of JICS, and the Minister, JICS had been given some funds. Mr Masondo would provide more details in his presentation.

The reports on Mangaung, Mdantsane and Durban were still pending from the last meeting. Violence had occurred in all these places, and in some instances people had died.  Colleagues had compiled a fresh report.

The perennial complaint was about not getting feedback from the DCS when matters were reported. In the report, there were lots of instances where the last column -- the “Status” column -- was blank. Attempts were being made to devise a method whereby the JICS could get these reports or responses from the DCS.  Mr Umesh Raga, Head of Legal Services, JICS, had provided assurances and given the latest report that could supplement page eight to 20 of the preliminary report. This report had detailed responses from the DCS.    

Briefing by JICS on the Quarterly Report
Mr Mike Masondo, Acting CEO: Judicial Inspectorate for Correctional Services (JICS) provided an executive summary of the Quarterly report for the period 1 October to 31 December, 2013. The Inspectorate had received a budget of R31 666 600 for the current fiscal year. For the current quarter reporting, R9 210 681 had been utilised. With regard to the requested budget for 2014/15, R44 668 million had been allocated to JICS. This provided an additional R8.3 million to cater for the new structure, as approved by the Minister. It had to be mentioned that R16 million was requested, but R8 million had been given.

The Inspectorate’s Central Management Region in Bloemfontein had been allocated suitable accommodation in a building that had been occupied by the Department of Public Works (DPW). The Eastern and Southern Management Regions were still busy liaising with the DPW regarding the procurement of suitable office space in their respective regions. The lease on the Southern Management region was about to end this March.

With regard to Human Resource Management, there was only one vacancy on the fixed establishment. The post of Senior Independent Correctional Centre Visitors (ICCV) was vacant and had been advertised. There was one contract appointment for the period under review and one contract employee who resigned because she got a permanent post at the Road Accident Fund. This matter of contract posts was a thorn in the Department’s side, as people tended to leave contract posts when they were offered more lucrative permanent posts elsewhere.

On labour related matters: two final written warnings had been issued for the quarter. One warning was for the misuse of movable state property and one for bringing the name of the Judicial Inspectorate into disrepute. One employee, the CEO, was still under suspension since 12 September 2013.  Related to this suspension, Section 88 subsection (a) paragraph 4 of the Correctional Services Act 111, stated that any matters related to the misconduct and incapacity of the CEO had to be referred to the National Commissioner by the inspecting judge. This had been done. Mr Masondo had been informed by the Investigator that the report related to this case had been completed and was with the DCS for further handling. An initiator had been appointed for the case and the details of the CEO had been requested so that they could issue him with the crafted charges.

The Acting CEO and the Commissioner of the DCS had met with the Work Study unit of the DCS on 8 and 22 November to discuss funds needed to fill the new post, and general funding requirements.  In January 2014, JICS had been informed that unfortunately only R8.3 million would be allocated. When this news was received, there was a staff meeting to decide what were the critical posts. The remaining R5 million would then go straight to contract workers, who would be appointed as permanent staff. Those on contract would continue as such until JICS managed to get the remaining amount.  The rest of the posts that could not be funded would continue as contract posts.

The Inspectorate had conducted inspections at 14 correctional centres. Four investigations had been conducted for the quarter. Investigations were also conducted for Mangaung and Durban Westville. Under complaints and mandatory reports, 377 complaints had been received for the period under review. The Inspectorate had received 16 cases of unnatural death and 152 cases of natural death. 2 089 cases of segregation had been referred to the office. There were 98 incidents of the use of mechanical restraints and 49 cases of the use of force.

Out of the 308 Independent Correctional Centre Visitor (ICCV) posts, 280 had been filled as at 31 December 2013. Performance audits had been continued.  Twenty audits had been conducted for the period. The minimum standard for ICCVs had been provided in the report. During the quarter, 404 complaints had been referred to and discussed at Visitors Committee (VC) meetings. 198 of these complaints had been referred to the Directorate of Legal Services.

Mangaung briefing
Mr Umesh Raga, Head of Legal Services: JICS, provided a briefing which followed from the previous engagement with the Committee, to show where the Mangaung investigation was at this stage. This was an ongoing investigation. 19 inmates had been interviewed. Not all were from Mangaung. They had been transferred across the country, so they had been interviewed on a previous occasion. About four were interviewed at Grootvlei. The team of inspectors visited from Goedemoed to Johannesburg, then to Leeuwkop , and so on.  JICS had 19 pieces of evidence. The majority of the interviews in respect of the seven conducted, were in the presence of the attorney who was representing the inmates. They all alleged incidences of being injected with a drug that had led to one or other form of incapacitation. Therefore, at a prima facie level, there was evidence from inmates that they were injected. The medical staff, the head of the clinic and the medical doctor who administered the injections, were spoken to and the medical reports of those still at Mangaung had been provided. It was confirmed that in those circumstances, those injections were allowed. The current situation was that there was a dispute with the inmates who had alleged that the injections were unlawful and in some circumstances administered incorrectly. The authorities at Mangaung and the medical personnel asserted that what was done, needed to be done under those circumstances, as medical professionals.    That was essentially where the situation was at present. Two pieces of oral evidence were available, as well as medical reports.

Mr Raga said that this was a difficult investigation.  There was a lot of information regarding this issue. It was not within the expertise of the inspectorate to read medical reports with regard to the nature of the drug administered, the type of mental illness a person was suffering from, and whether his behaviour required an injection. JICS was looking around the country for a forensic psychiatrist -- essentially, someone from Valkenberg or from the university -- to peruse these records and provide an opinion as to whether the reports from the medical staff at Mangaung were valid. The JICS lawyers and Inspectorate did not have the expertise and were therefore hoping to secure a medical psychiatrist in the next two weeks who could review some of the records and offer some guidance.  There was a factual dispute and expert evidence that needed to be assessed. That was where the situation in Mangaung was, with regard to the injections.

JICS had been advised that the Mangaung investigation from the departmental side, which was overseen by the Regional Commissioner, Mr Modise, had been completed or that they had a report and that report had been provided to the Department’s head office. JICS was keen to see that report as well. For reasons mentioned, JICS was unable to make a statement about whether there was liability or not.
 
Briefing on the Durban matter  
Mr Lennard da Souza, Inspector: JICS, said that with regard to the Durban investigations, the findings were summarised from page 20 to page 27 in the report. The findings were centered on three topics. The first topic was the assault of inmates by officials; the second topic was the alleged hunger strike by certain inmates; and the third topic was the mass transfer of inmates. The Correctional Services Investigation report and the last interviews that the JICS inspector was currently doing with some inmates at other correctional centres, was awaited before the report could be finalised.

Mr Raga added that the incident had taken place in Durban Medium B, and then a number of inmates had been transferred further around the country. This had required the team to travel around and look for these inmates to secure their statements.

Briefing on the Mdantsane matter
Mr Professor Mohlaba, Mandatory Complaints Manager, reported on the Mdantsane matter. On 1 November in the evening, around 10.30pm, a fight had broken out in one of the juvenile cells. This had led to the involvement of four other cells.  There were different gangs involved. This had resulted in the death of one inmate.  The presenter had done the investigations. Some of the findings were that the fight had started on 30 October; one inmate had stabbed another inmate; and then on 31 October the other gang members had decided to retaliate. When the investigations were done, it had been checked whether officials had done surprise searches and routine searches. One of the things that had been found was that on the night of the incident, there were only two officials on duty for that unit, which comprised 1 147 inmates.  It was also found that during the month of October, two surprise searches on 7 October, and also on 24 October, were done by officials.
 
Some of the items that had been found were: a self-made knife, a sharpened object, old padlocks and a cell phone. A cellphone had been found in the possession of one of the cleaners, including some extra sheets and blankets. It was also found that when dealing with these gang issues, the Department had not followed their own procedures. This was that when a fight occurred amongst gang members, the fight had to be reported to the South African Police Services (SAPS), and searches had to be conducted after those incidents.  It had been noted that after the fight on 30f October, officials had conducted no search. They had just written that there had been a fight and that the inmate had been taken to another section.  A search had not been conducted for two days.  The items found on 1 October were 30 self-made knives, eight stainless steel objects, one broken TV frame, one original knife, five blunt objects, one padlock, three Nokia cellphones, one sim card, three cell phone chargers, one teaspoon and 25 BB cigarettes. Three dagga cigarettes, 18 pieces of broken window panes, one piece of loose electrical wire, 23 dagga cigarettes and an identity document were also found.  A full report would be provided to the Committee.   

Discussion
The Chairperson said that if one looked at the last report given to the Committee, the concern was that these incidents had happened in October or November, 2013. Parliament was receiving the report five months later. Whatever recommendations came out would probably be six or seven months, if not a year, old.  How could this be circumvented? With two officials and 1 147 inmates, the chances were that if one of the Committee Members went there today, he or she would find the same thing. The Committee was supposed to intervene in this area, but it was very concerned about to how to deal with this.

The Chairperson said that Mr Raga had indicated that part of the delay in providing reports was that offenders were transferred all over the country. He asked if this was coincidental, or a deliberate ploy on the part of the Department to delay matters.

Mr Raga replied that there were instances where inmates had been transferred to thwart a proper investigation. This had had the effect of sabotaging or delaying the administration of justice under the excuse of transferring because of overcrowding. Now, according to DCS’s own rules, nobody should be transferred if there was a pending enquiry.   


The Chairperson said that in general, page 42 to page 49 in the report related to instances of officials assaulting inmates. He asked for clarity about Case 22 on page 49 of the report that stated that an inmate had alleged that an official had stabbed him. He asked if this had really happened. The usefulness of the report was questioned, as it was too late to do anything about it.   

Mr Raja replied that he did not have the finer detail about Case 22, as he needed to confirm the information and did not want to venture a guess. He apologised and said that he would send the information after returning to his office.  

Ms W Ngwenya (ANC) agreed with the Chairperson that the report had many instances of assault of inmates and officials. A solution and a plan were needed. The issue of gangs was not a small matter.

Ms Ngwenya asked how long the inspecting judge was supposed to wait for a report of the investigation. She had never received any report from the inspecting judge, with a response from the Department. It seemed that the Department did not take the reports coming from inspecting judges seriously.  

Judge Tshabalala replied that in his observation, delays were caused by the whole arrangement of reporting. The ICCVs reported to JICS, who then compiled reports. However, what was compiled had to be presented only after three months. Then the Department concerned -- which was the DCS -- through their officials, the Heads of Centres, did not respond. This took time. It was a different matter when foreigners could see we were ineffective. The reporting lines should be reduced. It should not take so long to report matters. There should be electronic monitoring of prisons. He said he did not see a solution.

Ms Ngwenya said that the shortage of staff was also a challenge in the Department, as there were not enough officials per cell. This could be why there were assaults and murders.

Ms Ngwenya said that it seemed that transfers to other centres were a solution for officials.  She asked the Department when the last vetting of officials had taken place, because it appeared that people who had not been vetted served inmates.   

Judge Tshabalala replied that it had happened that when he had arrived at a Centre he had been told that the inmate had been transferred. Those people who were troublesome in centres were transferred. Investigators had to travel all over to find them. With the video evidence situation, the Department had not pitched up. He did not know how to solve problem.

With regard to Mangaung, Ms Ngwenya said that a thorough report on this was required, and that Centre had to be dealt with. The situation at Mangaung was not finished.  

Mr V Ndlovu (IFP) said that he was not saying that people’s rights had been infringed, but that people were using their rights on top of other rights. He agreed with the Chairperson that a decision had to be taken to implement what the Committee thought was correct. It was often found in this report that an investigation was still pending. He recalled that the Committee had said that there should be a meeting between the Judge and the Department, under the chairmanship of the Commissioner or Acting Commissioner, to talk about these matters so that there would be an understanding. What had happened to that meeting? This was a principled issue. It was of no help that a report, which was six months old, had to be dealt with where there was agreement but no implementation.

Mr Ndlovu asked what happened when officials assaulted inmates generally.   Did anything different happen in a situation where the inmates were not in the wrong?

Mr  M Cele (ANC) supported Mr Ndlovu’s contention that in one of the meetings it had been said that the Judge and the Commissioner should meet. The issue at hand had been the filling of vacant posts and the budget. It was reported that they had met but there was unhappiness because they got only R8 million. He asked if there was an agreement with the Department about R16 million, and if the Department had reneged on that agreement.  

Mr Masondo replied that there were negative implications when JICS received only half of the amount asked for. They had to strategise posts. The thorn in his side was the contract worker, as some would stay as such. He did not know how it had been decided that the amount had to be reduced to R8 million.  This boiled down to JICS funds being handled by the Department.

Mr Cele expressed concern about the instance where an inmate had been searched and R5 000 had been found; where it was stated that there was no Head of Centre or official appointment in Ellotsdale; and the problems in the kitchen at Leeuwkop. He asked if the problems with the pots in the kitchen at Leeuwkop meant that no cooking was taking place.

Mr Cele said that there was a problem in Robertson, where it had been alleged that a security official was acting as an educationist. 

Mr Masondo said that it was not right that a security official was allowed to be an educationist.

Mr S Abram (ANC) said that the current situation had been the same for the last four years, and it seemed destined to remain this way in the future. There was a tendency to look at peripheral issues, when there was really a need to look at the root causes of problems that had led to the behaviour reported on today. Unless the overall causes were addressed, there was not going to be a reduction in what was happening.  A variety of problems had been enumerated here. Parliament was hopelessly marginalised.  Parliament was a legislative and oversight body. However, the Committee was dependent on the goodwill of the Department. This had to be mentioned in the Committee’s Legacy Report.
 
Mr Abram said that this country had a wonderful constitution. While one had to look not only at the inmate - who had to be handled with care, as it was our responsibility - there was also the official who had this task, and who also had human rights. There was something structurally wrong in our society.  It was gravely lacking. There was no end to unemployment. There was a need to address the root causes of why our society had become so violent.

The Chairperson said that many of these issues would have residence in the Legacy Report

Mr L. Max (DA) said that the last column in the report said that investigations were going to be conducted by the Department, and they were going to report back. Last year, there had been several of these reports. When these reports had been compared with the annual reports of the Department, one could see these reports talked to each other, as both showed a lack of controls within the Department. If one looked at the situation in Malmesbury, for example, where an inmate had attempted suicide, it was clear that systems to implement were not in existence. The Department had to come and explain how they were going to rectify the situation.

Judge Tshabalala said that he too was concerned about the last column and reporting.  He had been given the latest report, which had been compiled for the same period, and it had reported an inspection done on 2 October 2013, involving the Grahamstown Correctional Centre. This report was about simple things, like the fire extinguisher not being replaced. A letter had been sent in November and it had been responded to only on 4 February. The procedure lent itself to delays.  Two weeks ago, the Acting CEO and this Judge had had to give evidence in a case on fraud charges. The defendants had said they would not come back, as they were not safe. These were problems at a professional level, so whole world knew that JICS was not effective in what it was doing.

Ms M Phaliso (ANC) said that it was disappointing that the same things were being discussed. It was of concern that two officials had had to search 1 147 inmates. There needed to be negotiations in good faith between JICS and the Department.

Mr Masondo said that he had noticed with regret that the Department did not take the JICS seriously. He made a humble plea that this Portfolio Committee had the same Members next year.

Further discussion
Ms Ngwenya asked if Mr Masondo had written a letter to ask why there had been a reduction to R8 million, and if there had been a response. There had to be a response -- it would be undermining if there was not a response.

Chairperson asked if there had been any negotiations when the R16 million was reduced to R8 million.

Mr Masondo replied that there had been no negotiations when the money was reduced. He was taken aback when he was told about it. Currently management, including himself, were trying to decide how to utilise this R8 million. The Department would have to be told how the JICS had decided to use the money. Then he would ask them for a reason why they had reduced the funds.

Ms Ngwenya said she felt they would be back and would still work with this Committee, even if not as Members.   They could still come and assist, because this was a deployment. This was a challenge in terms of the Judiciary, the Inspecting Judge and the Department. She hoped that the officials had observed that there was a problem.

Mr Ndlovu said that he agreed with other speakers where the Inspectorate unit was concerned. There was a need to strengthen the relationship between the Department and the Inspectorate. In a situation where no doctor had visited for a long time, the report should be taken to the Acting National Commissioner and should be taken seriously.

Mr Ndlovu said that action had to take place when things did not happen as they should. He was hoping for a positive outcome.

Mr Max said that he endorsed the arguments of colleagues with regard to the need for JICS to exist.  However, to ensure effectiveness, it had to make it a priority to ensure the independence of JICS, with its own budget, its own positions and posts. JICS was dependent on the DCS, and had to have an oversight role.

Mr Max asked if there were consequences if the Department did not comply with the reports and requests of the JICS. If it did not have to comply, then what was the reason for the existence of JICS.

On the question of consequences, Mr Raga replied that it was beyond their scope to answer, as this was something the Department had to incorporate in its own internal processes. Members had said that quarterly reports had not been produced.  From the perspective of institutional memory, Mr Raja said that there was transparency and openness, and JICS was quite happy to put its version on the table with regard to what it was doing.  There had been an agreement between the CEO at the time and the current Chief Operative Officer (COO) with regard to JICS, inter alia, producing a monthly report, which would be sent to the Department. They had been given time to comment and come back to JICS.  JICS had sent the quarterly report a good couple of days ahead to the Department for them to comment on. That system was in place. It was important for Regional Commissioners to designate somebody in their offices, and in many of the regions they had dedicated people to oversee what was happening on the ground in their own prisons. JICS had indicated in their annual report that it was sometimes not sufficient if it was left to the Head of Centre to respond. The relationship between the Area Commissioner and Regional Commissioner at the national level maybe needed to be tightened.  Mr Raga said that he was proposing this as a solution, and that this was his personal view.

Mr Abram said that the Committee should call on the Department to respond in detail to all the issues raised here. It had to say what it had done about every matter raised. He asked what was the first step taken when there was a complaint; after taking the first step, what was the time lapse; after the first step, what were the subsequent steps; and at what point after the JICS knew about the problem it was you able to tell the Department about the findings and tell it to remedy the situation.

Mr Abram said that time frames were very important as human lives were involved. It was unacceptable that the state’s department officials were not keeping appointments.

Mr Raga replied that he was almost certain that time frames existed between the Department and JICS.  However, he felt that this would be a question best put to the Department about how they managed their own processes, and how much time they gave their own officials to investigate, to produce a report and then finally present the submission to JICS. This process had to be tightened in the regulations or in rules that governed the relationship between the two parties, and had to include time frames.   There were not any time frames that existed at this stage.  JICS operated on the basis of a reasonable time period. Its reports reflected the efforts that it made and the communications engaged in with regard to the Department of Correctional Services. So there was nothing in writing regarding time frames between JICS and the Department. Within the Inspectorate itself, there were time frames. There was a system in JICS with regard to time frames, and moving and escalating the matter up.

Mr Raga said that he just wanted to place on record that their report was for the period October to December. At the end of December, when this report was drafted, the Committee had been given a status report. During the last day or two, the Department had started responding because JICS had started applying a bit of pressure before coming to the Committee. This was not reflected in the report, but in respect of the inspections. This would be made available to the Committee. They had provided answers. In other words, at Elliotsdale it had been too late. However the Head of Centre had been appointed there.  So they had only rectified the situation in respect of the inspections, for example -- like the fire extinguishers at Robertson. For purposes of providing some perspective, the update as at yesterday had not been distributed. This would be made available.

The Chairperson asked if JICS was suggesting that the warm body on the ground should not be allowed to do the investigation, and that the Regional Commissioner or Acting Commissioner should be allowed to do it. In the real world if one needed to respond, normally one got something that said there was 21 days to respond, failing which a decision would be taken. Why did one have to wait? This was part of the delaying tactic. In the real world, one was given a set number of days. And if one did not, then whatever came before the presiding officer would go as uncontested. But in this Department, things were just left if they did not respond.  He felt that JICS should just say sufficient time had been given, the Department had not responded within sufficient time, this was JICS’ finding and this was JICS’ recommendation. This would put pressure on the Department.  Pressure should be applied by setting a date and if a response was not received by that date, then the Department would have to account to Parliament accordingly.

With regard to the R8 million versus the R16 million, the Chairperson said that here he was addressing Members and Mr Masondo specifically, and he was not saying whether this was right or wrong. He felt that actually the R8 million represented a 25% increase in the JICS budget. There was a move from R31 666 600, so R8 million was actually a 25% increase and the R16 million would have been a 52% increase.    It was something many Departments, and even government, would be able to afford. The point was taken that JICS was moving from a low base, but the R8 million represented 25% of what JICS started with. The Committee could comment further on this.

The Chairperson suggested that when investigations were pending, inmates could be moved to a central location. This would prevent inmates from being moved all over the country, because they were creating problems. This practice in the DCS of transferring was part of the process of sabotage. It was time to find a creative solution. If inmates involved in pending investigations were in a central location, there would not be issues of people not being found and investigations dying. Unless the Committee did something, the DCS would not do anything. This was something that had to be debated and discussed. There would not be cost implications, because people were being transferred elsewhere anyway.

This would be would be incorporated into the Legacy Report, if all Members were satisfied.

The Department of Correctional Services would have their opportunity on 19 February.

The meeting was adjourned.