The Department of Correctional Services (DCS) briefed the Committee on overcrowding and the threat that this posed to security in correctional centres. The DCS described the problem of over-crowding, how it arose and its extent, the solutions that the Department and other linked departments proposed or were implementing, and how access control, monitoring and gang management and vetting of officials were being addressed. Overcrowding was not a problem unique to South Africa, not could the causes be addressed by the DCS alone, and overcrowding impacted on the rights and attitude of inmates, and also on the officials. DCS's strategy proposed coordinated efforts within the integrated justice system to reduce inmate numbers, and effective use of sentence conversion, parole and transfers to other centres to manage. These efforts had seen a 34% decrease in overcrowding since 2005. The DCS described the basic levels of access control and monitoring infrastructure, varying from manual access controls to more sophisticated systems and electronic controls as part of an integrated system. A procurement project, led by Independent Development Trust (IDT) to upgrade outdated security infrastructure was then described, which would include revamping systems installed under previous contracts, and further security features such as body scanners and improved CCTV coverage. The preliminary tender process had been completed, and procurement was starting.
DCS gave more detail on the findings, between 2005 and 2010, on numbers of inmates, numbers of escapes and unnatural deaths, although it was noted that the statistics were no doubt affected by under-reporting in the earlier years, and it had been impossible to draw any direct correlation between overcrowding and these events. A gang management strategy had been implemented from 2012. DCS had joined the National Joint Operations and Intelligence Structures to strive for a more dynamic and integrated approach. The strategy adopted five pillars, including creating a safe and secure environment, proactive risk profiling and management of risk, proper orientation programmes and attempts to productively occupy inmates. DCS conceded that the vetting of officials remained a major problem for the Department, and that although there was a focus on vetting supply chain management officials, only 8% of senior management staff had been vetted, so it was considering devolving this to regions.
Members noted the drop in inmate populations but raised several concerns. They asked about the amounts to be paid under the new upgrades, particularly in view of substantial spending over the last few years and concerns expressed over the quality of work provided, and asked whether it was necessary to have IDT and the consulting company involved. They questioned the scope of the projects, why certain equipment and detectors had been postponed, and whether special considerations were applied to "hotspots" for gangsterism. They queried what proportion of inmates were remand detainees, how the DCS was handling this group in particular, the reasons why people were still remanded for inability to pay bail or small fines, and stressed the need for coordinated efforts with other departments. Other questions related to electronic tagging, use of CCTV cameras in cells to try to protect the vulnerable, quality of video footage, and re-offender policy and progress. The Chairperson pointed out that many of the challenges reflected societal problems and civil society and other departments would also need to address them. Further detail was provided on the "plough back" campaign to put inmates to productive use on social facilities. The DCS confirmed that despite the drop in numbers, it was concerned about them, and described its efforts with the magistracy, National Prosecuting Authority and departments. Members asked whether high-profile inmates were being treated differently, and whether section 63A had been used.
The Deputy Minister of Justice and Constitutional Development, and the Department (DOJ&CD) then briefed the Committee on the Maintenance Amendment Bill, which was essentially being introduced as a "stop-gap" measure to correct immediate problems pending the completion of the full review by the South African Law Commission. Another bill would be introduced shortly to amend the Sexual Offences Act, consequent upon the Constitutional Court judgments, in the cases of State v J and Teddybear Clinic, which would need to be addressed with some urgency at the beginning of the 2015 term. One Member took issue with the fact that the DOJ&CD was now pressurising Parliament, although it had known of the need to amend the legislation for some time. A fairly extensive briefing was given on the content and import of all clauses of the Maintenance Amendment Bill, pointing out that the amendments were intended to ease the process of claiming by the maintenance beneficiary. Amongst others, the provisions allowed for interim maintenance orders, tracing of respondents through cellphone numbers, other grounds for investigation of complaints, and wider jurisdiction of the Magistrates Court. Clauses also allowed for subpoenas to respondent and applicant, depending on the circumstances, for maintenance awards to be paid over by third parties such as employers or retirement funds, orders by consent that could be made in the absence of the respondent and provisions around when default orders could be made. Revisions to section 22 by way of clause 9 confirmed the position of the Supreme Court in the Cohen v Cohen case. The Bill further provided for uniform procedures for transferring cases, new provisions around blacklisting of maintenance defaulters, and emoluments attachments. Clauses 13 to 16 provided for increased penalties, and clause 17 provided for a new offence for hindering inquiries. Clause 18 allowed a discretion to the Court to convert criminal proceedings into a maintenance enquiry, giving effect to the judgment of the Court in S v Magagula. Clauses 2, 11 and 13(b) would not come into operation until regulations had been drafted.
Members generally expressed support for the Bill and the protection to women and children, but again raised concerns on the length of time taken, and wondered when the Law Commission process would be finalised. Members questioned the desirability of cross-references to other legislation in clause 2, asked if cellphone service providers had been asked for input, and whether there were inconsistencies with the Protection of Personal Information Act. They questioned the wording and import of clauses 5, 7 and 11, suggested possible additions to clause 6, and wondered if clause 13 was not too harsh and possibly inconsistent with the National Credit Act. Members questioned the logic of imprisoning respondents who had to work to support their children, and asked if Legal Aid South Africa might assist applicants when the respondent employed lawyers. The Deputy Minister noted that some of the questions were almost suggesting amendments, and these would need to be deferred to a later point, but urged that if any other pressing concerns were identified during the public comment, these should be referred to the Department and a way could possibly be found to include them in the current Bill.
Mr W Horn (DA), commenting that the previous day’s meeting on the transformation of the state legal services had been cancelled, asked when the briefing would now take place.
The Chairperson replied that this would take place on 18 November. The Committee had to take responsibility for the cancellation, and Members and officials had to be informed of any cancellations.
Security in Correctional Facilities: Impact of Overcrowding: Department of Correctional Services briefing
Mr Zacharia Modise, Acting National Commissioner, Department of Correctional Services, noted that the presentation document had been circulated, and spoke to the areas of concern that the Members had raised with the Department of Correctional Services (DCS or the Department).
Introduction and Overcrowding Management Strategy
Ms Nonsikelelo Jolingane, Chief Operations Officer, Department of Correctional Services, gave a background on the issue of overcrowding and its impact on security, outlining a correlation between inmate population and negative security concerns. She said that overcrowding was a global phenomenon, which undermines rehabilitation efforts, and had been identified as a key challenge for DCS. Section 35(2)(e) of the Constitution required that inmates should be detained in conditions consistent with human dignity, including adequate accommodation. The DCS followed a multi-pronged collaborative strategy to overcome this challenge, using partnerships,including the Justice, Crime Prevention and Security (JCPS) Cluster and the Department of Social Development (DSD).
Ms Jolingane said the strategies to manage overcrowding currently included:
- Managing levels of remand Detainees through Integrated Justice System (IJS) case management system and Inter-sectoral Committee on Child Justice
- Effective and appropriate use of conversions of sentences through community supervision, parole or transfer between correctional facilities
- Pursuing progress with DCS capital works projects, with an increased focus on rehabilitation
- Encouraging debate about the reason for incarceration and the encouraging of rehabilitation during a sentence
- Improving first and second levels of correction in family and social institutions and the socio-economic sector government departments, to decrease the rate of entry into the criminal justice system.
Ms Jolingane said the impact of these overcrowding strategies on inmate population levels had resulted in a 34% decrease in average population levels in correctional facilities from 2002/2003 to 2013/2014. The current levels in correctional centres were now at 130%.
Ms Jolingane moved on to give an overview of areas where overcrowding impacted negatively on security. She commented that the impacts were felt in:
- quality of nutrition and sanitation
- availability of health services and care for vulnerable groups
- inmate activities, physical and mental wellbeing
- the ability of Case Management Committees to process mandatory as well as intervention review sessions for consideration of release dates or applications for transfer
- inmate management, particularly classification, separation, direct supervision, handling inmate complaints and delivery of programmes
- creation of an environment conducive to gangsterism.
Ms Jolingane said overcrowding also negatively impacted on staff. Staff resources usually did not keep pace with the inmate population, leading to a skewed staff to inmate ratio. In such circumstances staff tended to take a more authoritarian approach and the challenges of overcrowding affected both their performance and attitudes. These challenges could be "lethal", creating problems in core security functions such as direct supervision, movement control and emergency management.
Ms Jolingane said overcrowding had a major impact on safety and security of inmates and staff, due to the inmate to staff ratio. Overcrowding led to inmate frustration and tension, because of dissatisfaction with the conditions in which inmates were held. International experience showed that the risk of violence and protest in overcrowded correctional facilities was acute. In many correctional systems the skewed staff to inmate ratio had led to selected inmates informally being tasked with supervisory and disciplinary duties, to keep order in correctional centres. This violated a basic principle of the United Nations Standard Minimum Rules and increased the risk of abuse of vulnerable inmates. Vulnerable groups such as children, women, offenders with disabilities and older inmates were at a particular risk, facing overcrowded conditions where inmates were not separated and an environment where the control of the centres' administration had weakened. In South Africa the situation was worsened by the current shift system which often resulted in only 50% of the staff complement working at any time at a given correctional facility. This matter was currently being attended to.
Ms Jolingane said the analysis set out in the presentation (see attached document for full details) was based on information for financial years in which there had been special remissions of sentences granted by the President. However, mass escapes made it difficult to determine the exact correlation to overcrowding being the cause of escapes. In addition, assaults were severely under-reported in earlier years, and the definition of what constituted an "unnatural death" had changed from earlier years.
Observations for the period 2005/06 to 2006/07 were that:
- Inmate population decreased from by 2.27% to 158 955
- Escapes decreased from 113 to 95
- Assaults decreased from 2001 to 1822
- Unnatural deaths increased from 56 to 57
Observations for the period 2013/14 were that:
- Inmate population decreased from by 5% to 152 205
- Escapes increased from 41 to 43
- Assaults increased from 5284 to 6884
- Unnatural deaths increased from 46 to 58
Ms Jolingane said that although there was no doubt that overcrowding affected security in correctional facilities, but there was at present no statistical information to validate the claim that the size of the inmate population related directly to the number of security incidents.
Security Infrastructure and Arrangements
Ms Jolingane said that the security system of the DCS was based on the Minimum Security Standards for Correctional Centres. These standards were based on six pillars of:
- personnel security measures
- physical security measures such as walls and fences
- technological security measures including closed circuit television cameras
- security information management to understand the threat
- operational security measures to give staff a clear procedure in the execution of their day to day security duties
- management supervision needed to be informed by an in depth understanding of the duties they were expected to perform and be actively involved.
Ms Jolingane said that access was controlled at four distinct levels. She noted that this included:
- Manual: which was applicable to all correctional facilities, with access control officials deployed at access control points to manually search and identify persons moving in and out of centres. This was aided by hand held metal detectors and involved the manual recording of movement in and out of centres.
- Electronic: These systems consisted of turnstile gates, biometric fingerprint readers, CCTV cameras at access points, bypass gates, walk-through metal detectors and control software installed at 65 correctional centres. This system aimed to assist staff in access control and provide management with electronic monitoring capacity. However, it was not part of a fully integrated system and maintenance contracts had expired, leaving the systems outdated. The Independent Development Trust (IDT) was currently planning the procurement for upgrades and maintenance of these systems. The procurement would include upgrading of the security fences and access control at the 47 correctional centres where these systems were previously installed, with a total of 106 sites also being considered
- Security fences: In addition to the 47 centres which saw security fences installed as mentioned earlier, the DCS rolled out security fences at 27 more centres. The IDT had also managed this project, which resulted in inner and outer security fences with security lighting, CCTV cameras and alarm detection installed. Also included was the installation of access control systems such as access control buildings, biometric fingerprint readers, X-ray machines and electronic locks. Work on 15 centres was at work completion stage, with hand over processes soon to commence. Work on the remainder of the sites commenced in May 2014, and was to be completed in September 2015.
- Electronic access as part of a fully integrated security system: The DCS currently had 14 correctional centres with fully integrated security systems installed, under the management of the Department of Public Works (DPW). These systems included all the equipment for access control mentioned earlier, but in addition included CCTV in the passages and courtyards, cell phone detection, intercoms, public address systems, pneumatic controlled doors, panic buttons and guard tour system.
Monitoring and Control of Activities Inside Correctional Centres
Ms Jolingane said monitoring and control inside the correctional centres occurred at four levels:
1) Direct control and monitoring of inmates by staff tasked with security and inmate management services, including sentence planning and “corrective programmes”
2) Direct managerial control through line managers responsible for supervising the performance of security and other staff, including proper reporting of any security or operational breaches such as corruption. Examples included security managers and operational managers
3) Indirect line managers were responsible from centre up to national levels, who ensured service delivery at centres through reporting visitation to service delivery points and personal interactions. They were delegated with authority to take action when breaches of operational or security procedures occurred
4) Supervision by oversight bodies occurred internally, through monitoring and reporting by DCS inspectorate and internal auditors. The Departmental Investigation Unit and DCS Anti-Corruption Unit dealt with complaints through their respective whistle blowing systems. Independent oversight was conducted by the Judicial Inspectorate of Correctional Services (JICC) , which reported on service delivery and complaints, following visits by judicial officers.
Ms Jolingane also noted that CCTV monitoring was one area where the DCS could improve. Cameras with recording capacity could assist officials and managers to monitor activities in centres. Currently there was a limited coverage in areas such as some perimeter fences, exercise yards and hospital sections.
Ms Nthabiseng Mosupye, Chief Deputy Commissioner: GITO, Department of Correctional Services, repeated that IDT was appointed to implement access control and associated security systems at various DCS correctional facilities in 2012. The new project was a follow on from the procurement contracts for Access Control (Sondolo Contract HK2/2005) and Security Fencing (Phezulu Contract HK24/2005). Tsepa Consulting CC was then appointed by IDT in November 2012, following an open tender process, as electronic security consulting engineers.
Ms Mosupye said Tsepa Consulting CC had made findings on the work completed under the two previous contracts, which included findings of non-compliance with DCS minimum standards, statutory requirements and national standards, the fact that existing infrastructure was largely obsolete and sub-systems were not fully integrated. The Disaster Recovery Centre was non-functional. Proprietary software had expired, rendering most sub-systems non-functional and recorded video footage was practically unusable. Furthermore, it was found that the existing perimeter lighting was inadequate and overall client exposure to security risk was high.
Ms Mosupye said the new programme objectives now included enhancing security to comply with DCS minimum requirements, enhance verification and evidence availability, improve flow control of inmates, visitors and members, ensure training for maintenance personnel and operators, and ensure a secondary option for control room operations should the facility not comply with its obligations to provide operators. This was to be achieved through the following efforts:
- Repair of access control, associated subsystems and components to an acceptable and maintainable state
- Enhancement of early warning systems
- Improvements to, or the introduction of system scalability, redundancy, availability, reliability, maintainability, integration and manageability
- Integration of all subsystems at a centre, regional and national level, to avoid operating in isolation
- Implementation of a structured maintenance programme.
Ms Mosupye said the scope of the project included physical access control, CCTV surveillance in courtyards and passages - but not in cells as yet - fire detection and suppression within control rooms, power back up systems, access point intercoms, security lighting and security fencing and components. However the project did not include public address systems, cell phone detection systems, an inmate management system or body scanners. These would be integrated into the electronic security system.
Ms Mosupye said that the programme would cover one national centre, six regional centres, 99 correctional centres and the new Disaster Recovery Centre. The preliminary and design stages had been completed, consisting of field investigations, concept design and approval, detailed designing and the release of tender documentation, with estimates. The first stage of procurement had now been undertaken, with the pre-qualification open tender ready for advertising, and this would be followed by a stage two closed tender, and she explained that this tender was closed because the specifications related to security and could not be publicised too widely. She noted that within both the access control and fencing systems, integrated systems would be pursued so that the DCS could manage them at the national level.
Gang Management Strategies
Ms Jolingane said that a Gang Management Strategy (GMS) was developed and implemented in April 2010. Regional and centre level management were then tasked with developing action plans based on this strategy. In 2012 a Gang Management Task Team was appointed and identified gang “hotspot” centres. Gang Management check-lists and a monitoring tool were implemented in June 2013 to assist in the implementation of GMS. Heads of correctional centres reported to Regional Commissioners on the implementation of the GMS, with a focus on hotspot areas. These reports were then tabled in the Regional Gang Management Task Team meetings, for elevation to national level. A gang reference group had been identified and appointed in July 2013, to act as a source of knowledge and help with the drafting of manuals. Training for heads of centres was currently under way and was to be rolled out to other levels of staff.
The matter of gangs was elevated to the National Joint Operations and Intelligence Structures (NAT JOINTS) to strive for a more dynamic and integrated approach, which did not solely focus on correctional services. The National Intelligence Coordinating Committee (NICC) was to lead the interdepartmental gang management task team, which included the DCS. Visits had been conducted to Pollsmoor and St Albans, with more planned for other hotspot areas. The DCS was currently negotiating a memorandum of understanding with the Council for Scientific and Industrial Research (CSIR) to assist with research into various areas, including gangsterism.
Ms Jolingane said the GMS had a number of objectives, with sub-strategies and actions taken in pursuit of the identified ends. The first objective was to create a secure environment which was conducive to rehabilitation and ensured the attendance of remand detainees at court. This was to be achieved through dynamic and proactive risk management through the profiling of gangsters and effectively responding to threats to the staff or inmate’s security.
The second strategy aimed to encourage a management centred approach to eliminating gangsterism. This would include the development and implementation of an intelligence and information management system, and attempts to reduce the context and motivational aspects for disruptive groups by ensuring the rights of inmates. The main action taken under the first strategy was managing intelligence on gangs, by having security threats immediately reported to the head of the centre, appointing senior investigators in gang related matters and monthly centre gang management task team meetings. By contrast, the second strategy would focus on interventions to discourage gangsterism, such as extra supervision and searching of prominent gangsters and the separation of potentially vulnerable inmates. There would be direct involvement of management through staff debriefings and ensuring a physically safe environment for detention. Personnel at various levels would be trained, including security officials in control and restraint techniques and the staff generally on the gang information manual.
The third objective was to enable inter-sectoral cooperation. This was to be achieved by establishing inter-sectoral forums, with regular meetings between heads of centres, security agencies and South African Police Service (SAPS). DCS management would also be involved in structures such as NAT JOINTS.
The fourth objective was addressing the potentially negative effects of incarceration. The two strategies here were the proper orientation of inmates on admission and during incarceration, and the development and implementation of programmes within the day programme to keep inmates constructively occupied.
Vetting of Officials
Ms Jolingane said that the DCS had established a security vetting fieldwork unit in 2008, based on the national vetting strategy of 2006. This unit comprised 11 officials, two vetting administrators, eight vetting fieldwork investigators and the vetting unit manager.
The DCS had approximately 42 000 filled posts in its establishment. So far, 1 519 officials had been vetted, with 3 071 files at the State Security Agency (SSA). The DCS also recruited, on average, 1 200 corrections learnership graduates and a further 1 000 interns nationwide per year, who must all be security screened before absorption into the Department. The burden on the unit was therefore greater than it was able to handle. DCS had now prioritised the vetting of supply chain management staff, following a Presidential instruction. A total of 810 applications were processed out of the 1 200 supply chain management officials nationally, with 671 submitted to the SSA, and 139 clearance certificates were so far issued. The DCS had 220 funded SMS posts, of which 174 were filled. However only 14 (8%) of these persons had been vetted. The feasibility of reaching the target for SMS vetting was negatively affected by the refocusing onto supply chain management officials and general capacity shortages.
Ms Jolingane said the challenges to vetting included the capacity required to screen candidates for new posts, which meant that the vetting of existing staff and re-vetting of officials with expired clearances was under-prioritised. The Department planned to address this by requesting SSA to vet all level 14 to 16 SMS staff members. Human Resources was testing the feasibility of rolling out vetting units to the regions. The vetting of existing employees and those with expired clearances had been prioritised for 2015 to 2020, with continued vetting of new employees to run alongside. The DCS also planned to vet learnership candidates, to ensure that suitable candidates entered the system.
The Chairperson said that he was convinced that the Department was aware of the issues and knew how to deal with them, and suggested to the Committee that academic debate or political mud-slinging would not aid the Committee. He asked Members to engage with the report, and if there were areas where they were unconvinced, these matters should be checked upon during oversight. He suggested that the problems that DCS faced were societal in nature, and until the root causes were addressed, no amount of talking or discussion with the DCS would change the issues. For this reason, he would encourage an approach to find joint solutions leading to real action.
Mr J Selfe (DA) referred to the previous two contracts and the statement that the maintenance contract had expired and the systems were now outdated. As the new IDT-run project was a follow on from the previous two contracts, he would like to know how much money was spent, to determine whether the state got value for money, and in what respects these previous contracts had been unsatisfactory. He asked for the names of the directors and shareholding of Tsepa Consulting, which had been appointed by IDT to take responsibility for access control consultation.
Ms Nandi Mareka, Acting Chief Financial Officer, Department of Correctional Services, reported that in relation to the previous access control contracts, said the DCS spent R267 million for the 65 centres. This also included the regional and national control centres, which were outsourced.
Ms Mosupye added that the DCS had done an assessment of the two contracts and the gaps identified were set out in the presentation. Furthermore, the pace of technological developments made it obvious that the DCS’ infrastructure was outdated. If a proprietary solution was procured, the licences needed to be maintained constantly and if that proprietor did not develop the system, then it was inevitable that it would become outdated. She pointed out that the ten-year time was long in relation to the technology, with new biometric and other systems since being developed, with concomitant software upgrade requirements. She said the ownership of Tsepa Consulting would be provided to the Committee, as soon as it was received.
Mr Selfe noted that there had been regression in the vetting, particularly with the SMS level officials. He foresaw a dilemna, in that as more officials were vetted, more officials’ clearances would expire, leading to no progress in fact. He was unsure whether the number of officials appointed to do this work was sufficient, and pointed out that if consideration was given to running the unit at regional level, that would involve more officials. He wanted to know how DCS and SSA planned to "stay ahead of the curve". This was particularly important, since if efforts such as GMS were to work, the people working "at the coalface" had to be trustworthy.
Ms Jolingane agreed that the eleven officials had very limited capacity, and rolling out units to the regions was being done in an effort to build capacity. The DCS was working with the SSA to assist in fast-tracking the vetting the senior officials. DCS planned for the units in the region to deal mainly with the vetting of supply chain and security officials, leaving vetting of senior management to the SSA. She conceded that, generally, this was a challenge, particularly with the inescapable cycle of clearances expiring and new officials being recruited.
Mr S Swart (ACDP) said it was important to consider overcrowding against the background of budget constraints and the infrastructure problems with the Department of Public Works spoken of by the DCS. He also appreciated the approximately 34% drop in overcrowding since 2005, which demonstrated an improvement. It was important that the DCS look at the Committee’s Budgetary Review and Recommendation Report (BRRR), which had two recommendations regarding the current shift system. Pointing out that the current system posed dangers to officials, he wanted to know when this might be resolved. Although he was mindful of budgetary constraints, he said that the possibility of CCTV cameras in cells should be explored, particularly with the gang activity in cells after lock up. On the issue of assault, the Committee’s BRRR highlighted that there was no differentiation made between common assault, assault with intent to do grievous bodily harm and sexual assault. In 2005 there was a similar number of inmates, around 162 000, and there were 2001 reported assaults, but in this financial year the number of assaults was at 7 370, which was indicative of massive under-reporting in previous years. Whilst he appreciated the steps taken by DCS in encouraging whistle blowing and the like, there remained serious concerns as to what happened in cells at night, and at what level gang intimidation was reported.
Mr Modise said that during the term of former Minister of Correctional Services, Mr Sibusiso Ndebele, a task team was set up to deal with human resources related matters, including the shift pattern and Occupation Specific Dispensation (OSD). This task team was now about to complete its work. DCS was confident that the report would be released the following Monday, and that would enable a decision on the shift pattern for the Department to be taken. He reminded Members that this was long overdue, since a court order had already required this to be done by 31 August 2008. The instability in management at that time, however, meant that no decision could be made. The DCS agreed with the Committee that the shift system was a factor in the absence of direct supervision in centres. The new shift system should be completed by the end of November, with a new shift pattern in place by December. Furthermore, the DCS had a commitment to install CCTV cameras and was currently installing them in the hallways and courtyards of correctional centres. There had not been an attempt to place them in cells as yet, because of concerns expressed during interactions with the South African Human Rights Commission and other stakeholders. While it was understood that incidents occurred at night, while there was no direct supervision, it must also be remembered that innocent offenders' rights would be affected by installation of cameras, although he accepted that the rights needed to be carefully balanced with due consideration also given to the rights of the victims of gang violence. DCS was seeking further opinions on the matter.
The Chairperson said it was good that Mr Swart had also raised the security of officials as a concern, because even with other government entities such as the SAPS, the plight officials was at times neglected. He agreed that a balance of protection must be found.
Mr L Mpumlwana (ANC) stressed the potential benefit of the CCTV cameras, as raised by Mr Swart, suggesting that the cost was outweighed by the gains to efficiency and information gathering. He said that, with the merging of the Justice and Correctional Services portfolio committees, there was a possibility to encourage the use of electronic tagging sentences in the lower courts, and asked if DCS would like this Committee to initiate the process. He also wanted information on the feasibility, asked whether the monitoring or provision of the devices was done by a service provider, and if any potential problems had been identified.
Mr Modise replied that there was presently one tagged remand detainee, and this was a test project to see whether the country was capable of tagging remand detainees. This option was not overly expensive, with tags being placed on limbs. If the DCS were to monitor unsentenced remand detainees, then an amendment to the legislation would be required, but once this was done, electronic monitoring could be implemented easily for remand detainees. This was the purpose of the DCS's fact-finding trip to Brazil and New York, giving consideration to both sentenced and unsentenced prisoners.
Ms Britta Rotmann, Chief Deputy Commissioner: Remand Detention, Department of Correctional Services, said that electronic monitoring was a cluster level initiative and should remain thus in order to be effective. The DCS did not view this as something which it had to do alone, and in the next year it would be possible to get a better idea of its sustainability.
Mr V Smith (ANC) started by making a general proposal that when the Department reported on the scope of procurement projects, it should set out clearly the work to be done, a target date and the projected cost. In the last two years, R11 billion had been spent on security, and it was therefore important to be able to monitor and justify the Department's spending. He asked what was the motivation for approaching IDT, which in turn had contracted Tsepa Consulting, just to obtain a report. He asked what the particular value-add of this approach had been, and wondered if DCS should not rather reclaim its own responsibilities, particularly in a security environment. Speaking to the scope of the project, his main concern was the report that body and cellphone scanners were to be integrated later. These were crucial, targeted the very matters that were causing the greatest problems, and thus could not be an afterthought; he suggested that they should be prioritised, with CCTV cameras included in the main scope of the project. He suggested that the access control upgrades to be conducted should be linked directly to areas of high-density gansterism, such as St Albans and Pollsmoor.
Ms Jolingane said the DCS was indeed prioritising the gang hotspot areas, as suggested. She added that DCS recently awarded a tender for body scanners, because the DCS had realised that there were a number of solutions, but some needed to be prioritised. All high density gangsterism areas would receive body scanners. The tender had been awarded, and a contract was signed on 20 November giving the service provider three months to conclude installations. She agreed that there was a need to have clear deadlines with all the other equipment mentioned also, because there were centres where equipment such as cellphone scanners had been tested. The DCS was committed to providing clear deadlines for what would be done.
The Chairperson said that Mr Smith had raised a good point about outsourcing functions to IDT, and added that the Department of Justice and Constitutional Development had also outsourced functions relating to the Truth and Reconciliation Commission to IDT. His major concern was that both departments were meant to account directly to the Committee, and the inclusion of multiple intermediaries, such as IDT and Tsepa Consulting, would pose the risk that the Committee would not be properly informed or be able to hold the departments fully accountable for progress. He also echoed the need for time lines on project progress, and that resonated with the need for the DCS to be able to account for its conduct properly. He warned that contracting out functions should not be used as a ‘means of passing the buck’ in government in general, lest no progress be made at all.
Mr Modise said the DCS would provide a comprehensive answer dealing with why IDT was appointed and what role Tsepa played to the Committee, to deal conclusively with the matter. The main rationale was that IDT, acting as an agent performing the same functions as the Department of Public Works,could perform in faster turnaround times, to link with part of the DCS’s enterprise project management.
The Chairperson later added, on this point, that the Committee was not concerned about the contracting out of functions in itself, it was concerned about the risk that government could lose control over the work being done. He was reassured by the promise of a comprehensive response.
Mr M Redelinghuys (DA) spoke to slide 13, which stated that there was a link between overcrowding and re-criminalisation and asked how the DCS would mitigate this. He noted that the DCS had no control over the number of inmates it must incarcerate, and understood that DCS was doing its best to deal with the situation. However, he suggested that the DCS, Committee and Department of Justice and Constitutional Development (DOJ&CD) should, together, discuss how the numbers of inmates could be reduced, through sentencing or other avenues.
Mr Modise said government departments had been clustered, and both DCS and DOJ&CD were in the JCPS Cluster, along with the SAPS, National Prosecuting Authority (NPA) and DSD. One of the main focus areas was how to speed up court processes, and exploring the options of alternative sentencing, such as community service under supervision. These efforts were geared towards reducing the burden of overcrowding for the DCS.
Ms Rotmann pointed out that in the 2013/14 financial year, the DCS had had the lowest number of remand detainees since 1998 when the measuring system was put in place. The number of remand detainees fluctuated over the months, and December would generally see an increase. The reduction was indicative of the better functioning of the cluster, with the only downside being that as the number of remand detainees dropped, the sentenced inmate population rose. This had led to an assessment of what the place of remand detainees was in the total prison population. South African statistics were favourably comparative with international figures on the numbers of sentenced inmates versus remand detainees. The DCS was involved in the National Efficiency Enhancement Committee (NEEC), chaired by the Chief Justice, which dealt with a number of issues in the cluster. The DCS would continue pursuing its present interventions. It was presently focusing on the “top 20”, who were those remand detainees who have been incarcerated the longest time. Another issue needing consideration was the high turnover of remand detainees, with some centres having an 80% turnover of remand detainees within the first three months. Interventions were being developed to deal with this.
Mr James Smalberger, Chief Deputy Commissioner: Incarceration and Corrections, Department of Correctional Services, reiterated Mr Redelinghuys’ point that the DCS was "a receiving department" and thus it needed to find ways of dealing with this work load. He spoke to the multi-pronged strategy which encapsulated remand detainees, sentenced prisoners, public works efforts and integration of offenders into society. He said the strategy and interaction with the Cluster was working, although there was still room for improvement. The numbers of inmates, as indicated in the presentation, was down by 30 000 from ten years ago; in 2000 there were 63 000 awaiting trial detainees, but there were now 41 000. He stressed that at any given time, between 15-18% of the 41 000 remand detainees were eligible for bail, but could not afford to pay the bail, even when it was as low as R500, and that was a major impediment to the numbers being dropped even more. There were also 3 000 sentenced prisoners who could not afford to pay the fines that were an option to serving a sentence, and they added to the strain on the numbers. There were also 10 000 inmates serving sentences of less than a year, but this was an area where the burden was being decreased through conversion of sentences. He added that the multi-pronged strategy was managed on a bi-monthly basis at both regional and national levels. At meetings of the National Overcrowding Task Team, the regions reported on individuals who remained in detention, and information on why they remained there was provided, although it must be kept in mind that a warrant of detention could not be ignored.
He added that re-criminalisation due to overcrowding was another challenge which could not be ignored, and the extra 30% of inmates had to be taken into account, in whichever facility. Separation of inmates was also a complex matter where large numbers were involved. This was why the DCS had identified these and other challenges in the presentation to the Committee. He also spoke to the committee chaired by the Chief Justice, the NECC, where either the National Commissioner, Chief Deputy Commissioner for Remands, or Chief Deputy Commissioner for Incarcerations and Corrections participated. At the regional level the committees were chaired by the Judge Presidents. This structure had been in place for 18 months and results were being achieved, with representation of all relevant departments. DCS had created a non-custodial sentence task team, which visited magistrates to inform them of sentencing alternatives to incarceration.
The Chairperson said that Mr Smalberger had effectively said that an individual's financial circumstances would determine whether s/he would be incarcerated, and he referred to the "plough-back" campaign, spoken of by the Minister of Justice and Constitutional Development, which suggested the generation of a project where inmates were put into productive work at state facilities, which would itself aid the DCS’ mission.
Mr Selfe asked whether Tsepa Consulting did any other work for the DCS, because in the past there was a problem of a single contractor doing multiple projects without being able to do so properly. in relation to the debate on the CCTV cameras, he recalled a riot at the Kimberley new centre, where CCTVs were installed in the courtyard, but the quality of the recording was so poor that the instigators of the riot could not be prosecuted. He sought the assurance of the DCS that the quality of the new systems would meet the purpose, and that the DCS was not spending merely for the sake of having a system.
Mr Modise said that one of the DCS’s weakest areas had been management of contracts but it was now striving to strengthen the unit to ensuring, through increased capacity, that the state would get value for money.
Ms C Pilane-Majake (ANC) asked about the DCS’s compliance with the minimum security standards, asking for pointers and justification on the progress, to help the Committee understand any impediments to progress. Taking Mr Redelinghuys’ point further, she asked whether the DCS had interacted with other role players, including the NPA and Department of Social Development, to find a comprehensive solution to overcrowding. She wanted the DCS to develop a strategy on community rehabilitation, and suggested it should look at legislative amendments to enable this alternative.
The Chairperson said these challenges pointed to the fact that rehabilitation and reintegration were societal matters. It was possible to change the law, but that would not necessarily change society. He questioned the role played by civil society organisations in the challenges which caused strain on the DCS. He said perhaps that Ms Pilane-Majake’s suggestion could be taken up through an indaba with all stakeholders, because the DCS could not be solely responsible, and other participants should identify how they could assist.
Mr Modise said the plough-back campaign was important, and agreed that crime prevention could not happen in isolation. It was important to utilise offenders to engage in activities such as building schools or clinics in order to “pay back” the community. He said this should be included in the Correctional Services Act and the DCS’s Annual Performance Plan, to enable proper accountability.
Ms Pilane-Majake followed up on the discussions around remand detainees, because she felt that the the response seemed to indicate that it was not a major problem, because the numbers were reducing. However, she remained concerned because, despite the assurance of the DCS, the last report received by the Committee indicated that there were "approximately 45 000” remand detainees and it was felt that this was far too high. She asked what the numbers were at the moment, if it was suggested that the levels were not so high as to cause concern. She also asked what the international comparative figures or standards were, and called also for more information on the NEEC. There were many forums dealing with similar problems and an effective approach should be adopted.
Ms Rotmann replied that she perhaps needed to show the Committee a graph which depicted the consistent downward trend from 2002. She had not meant to indicate that there was nothing to worry about, because she agreed that it was always a problem to have people in the correctional system who had not been found guilty. There were roughly 40 000 at present, but this figure fluctuated from month to month. The international standard indicated a 25% remand population out of total inmate population. The world average was 32% and South Africa was at 26%. The NEEC was chaired by the Chief Justice and considered how to make the entire justice system more efficient through all stakeholders; the judiciary was represented, in addition to departments and civil society. There were also provincial committees chaired by the Judge Presidents, and at this level there were accurate figures on which courts were not processing cases, or were creating more remand detainees.
Mr Modise said the DCS had capacity to accommodate approximately 120 000 inmates, and at present there were approximately 167 000 inmates. Every instance of overcrowding meant that inmates' constitutional rights were being infringed, and this was why the DCS had a firm commitment to resolve all overcrowding at correctional centres. The DCS had teams of people working daily on reducing overcrowding by trying to speed up court processes and other approaches.
Mr Smith said it had been intimated that, because of the inmate population, it was difficult to separate the inmates upon admission. He said the DCS was doing itself a disservice when high-profile people were sent to a particular centre for fear that they might be harmed, and wanted to know what the difference was between high-profile and average inmates. He cited the example where two people had been accused of feeding another to lions; the white co-accused was released on parole and the black co-accused remained detained. He said that access to money should not makes life easy in prison, and separation at inception should be indiscriminate. He wanted to know if Oscar Pistorius was getting special treatment and if so, why. He said the control measures and manual measures needed to be reduced to a minimum, especially because it was known that there was collusion and corruption.
Mr Modise was unsure whether it would be proper to speak about the Pistorius matter, because it was being considered for appeal. He said that Oscar Pistorius was a person with disabilities and the DCS had taken the decision to treat such persons differently, as stated in a White Paper. Whether he had money or not was of irrelevant, but it was important that persons with disabilities were able to serve their sentences in an environment conducive to their physical condition. He said that there was no preferential treatment in our facilities, and there was no preferential treatment for parole. It was possible that the parole system needed to be overhauled, as chairpersons of parole boards may take decisions contrary to the DCS policy. One example arose when the chairperson in the “Waterkloof Four” matter decided to refer the matter back to the court of first instance. The DCS needed to put checks in place to ensure this did not happen and was thus looking to re-examine the parole system, to ensure that this type of controversy did not happen. The same principle applied to medical parole.
Mr Swart agreed with the comments on the Pistorius matter, and agreed that an appeal was pending. In relation to the problem around remand detainees, particularly the ones unable to pay bail, he noted that Parliament had initiated legislative change to deal with this problem, through section 63A of the Criminal Procedure Act, which allowed the DCS to apply to have the magistrate change the conditions of bail if there was over-crowding in the centre. He asked if DCS was making use of this provision, because it did not make sense to keep a person incarcerated, at a cost of R300 per day, where the bail was minimal.
Mr Modise said that several section 63A applications have been made, with notable success at some courts but less at others, particular if the particular remandee posed a security risk or may face a risk from members of the public.
Mr Selfe noted that his question about the work being done by Tsepa Consulting and the quality of equipment being installed remained unanswered. On the question of overcrowding, he also suggested that DCS should consider the option of deporting individuals to their country of citizenship to serve their sentences, and asked if this process had stalled, because at the last check there were approximately 10 000 Southern African Development Community citizens serving sentences in South African centres, and if they were transferred, it would substantially contribute to reduction of overcrowding.
Mr Modise asked that DCS be given time to prepare responses to Mr Selfe’s questions on the former contracts. In relation to the latest question, he confirmed that there had been significant work done towards transferring person back to their countries of citizenship, although one problem was that there were countries where capital punishment would be a competent sentence, and the South African government wanted assurance that the prisoner would not be executed if transferred.
Ms M Mothapo (ANC) commented on the right to privacy for prisoners as raised by Mr Modise in the context of CCTV cameras in cells. While there was such a right, there was also a concomitant responsibility and the limitations clause under section 36 of the Constitution was relevant, so the right to privacy alone was not conclusive.
Mr Modise said he was in full agreement that rights indeed had limitations, but the DCS wanted to ensure that where the rights of victims were violated, the rights of the perpetrators were also taken into account and that all stakeholders understood the situation.
The Chairperson said he accepted the assurance that there was no preferential treatment in correctional centres and the DCS could not be blamed for incidents of personal wrongdoing by officials which slipped through the cracks. He commented that the Committee had laid a basis for constructive engagement with the Department for the future.
Maintenance Amendment Bill [B16-2014]: Deputy Minister and Department of Justice and Constitutional Development briefing
The Chairperson welcomed the Deputy Minister of Justice and Constitutional Development, Mr John Jeffery.
Mr Jeffery said that he would give background on the Maintenance Amendment Bill (the Bill), pointing out that this Bill emanated from the executive and not the Department of Justice and Constitutional Development (DOJ&CD or the Department). The current Bill would be coupled with a future bill to amend the Sexual Offences Act, consequent to two Constitutional Court judgments - the case of S v J which ruled automatic inclusion on the sex offenders register unconstitutional in certain circumstances, and the Teddybear Clinic case, which decriminalised sexual activity between consenting children. These amendments had to be made, respectively, before late 2015 and 3 April 2015. The second bill was currently in the Cabinet cycle, although not yet approved, and had been advertised for public comment by the DOJ&CD. It was expected to be tabled before the end of the year. Because of the time constraints he suggested that the Bill should be prioritised by the Committee for the beginning of 2015 and be advertised for public comment as soon as possible. This would allow time also for deliberation and processing by the National Council of Provinces. He was unsure whether the Committee would require a briefing but by the time this bill would be tabled, Members would be on oversight visits or at their constituency offices. He asked that, after this bill had been tabled, it should thus be advertised for public comment early in February.
Mr Swart said that this was a controversial bill, and he would like to know why it was taking so long to reach this point. The Constitutional Court had given Parliament eighteen months to amend the legislation, but the executive was now putting pressure on Parliament to push the bill through. The Constitutional Court had indicated that there would be a lot of public interest in this bill. The Committee had also been deeply engaged with the content of the bill and more debate could be expected, both in Parliament and from civil society, to satisfy the requirements of the Court.There were instances where the Constitutional Court had been asked for an extension of time, and this was an option if needed.
The Chairperson suggested that the Commitee should, in the first instance, agree to the process suggested by Mr Jeffery, and seek an extension if needed.
Ms Pilane-Majake agreed with the Chairperson and said that it was important that the process be initiated; the Committee could deal with problems as and when they arose. She hoped that in the meantime, all other issues with the bill could be dealt with by government.
Mr Jeffery said that one of the reasons that the bill had taken so long was that the Department itself had advertised the bill for public comment. When he asked why this had not been left up to Parliament, the Department told him that the Committee had requested it to do so. He clarified that he was now merely asking that Parliament should start the process of advertising for public comment early next year, or when the bill was tabled before recess. He was not suggesting that the process be rushed or that Members should return to the Committee early. The Constitutional Court was not fond of giving extensions and because the order was directed at Parliament, it was this body that would have to seek an extension.
Content of the Bill
Mr Jeffery noted that the current Maintenance Bill was a "stopgap fix" for the Maintenance Act of 1998 (the Act or principal Act) to correct issues amenable to a sort term solution, but there was also a full review under way, under the South African Law Reform Commission (SALRC). The current amendments were aimed at making the maintenance process easier and to allow for easier claiming of money. One example was the introduction of a provision for interim maintenance orders, which would prevent the respondent being able to impede the process pending a final maintenance order. One controversial point in Cabinet related to the situation where a respondent could not be found, but the plaintiff had the cell phone number, and whether this could be used to trace his address; Cabinet had questioned who would pay for this and it was decided that the applicant would pay for this service, but could claim reimbursement when the respondent was discovered, and maintenance awarded. This provision was identical to one in the Protection from Harassment Act, which also provided that the applicant covered the costs in the first instance. He understood that at present the cellphone service providers were doing the service for free, although this may change if demand increased. The actual cost was relatively low, around R60. He also highlighted that a provision had been made for credit blacklisting of maintenance defaulters.
Ms Theresa Ross, Principal State Law Advisor, Department of Justice and Constitutional Development, spoke further on the background to, and more detailed provisions of the Bill, reiterating that it was intended to be an interim measure, pending the finalisation of the fully-fledged review by SALRC. Those responsible for implementing the current Maintenance Act had, over time, identified various problems in enforcement, and asked that it be amended, so the current proposals were intended to address the practical and technical problems with the Act. Other stakeholders had also called for a sensitive and fair approach to the determination and recovery of maintenance. Therefore, this Bill would provide a short-term improvement, until the SALRC produces its final recommendations.
Ms Ross then detailed the amendments (reference to sections relates to the current Act, and clauses to the current Bill)
Section 6 of the principal Act, & Clause 1 of the Bill: Complaints relating to Maintenance
Ms Ross said clause 1 added another ground for investigating a complaint relating to maintenance, requiring a maintenance officer to investigate a complaint, where good cause existed, for the substitution or discharge of a maintenance obligation, in the case of a verbal or written agreement which was never made a court order. It also aimed to extend the jurisdiction of magistrates courts to deal with maintenance proceedings if the respondent worked or carried on business within the court's territorial jurisdiction.
Section 7 & Clause 2: Investigation of Maintenance Complaints
Ms Ross said clause 2 was the one that Mr Jeffery had alluded to earlier, and related to tracing of intended respondents and maintenance defaulters. This placed an obligation on electronic communications service providers (ECSP), upon the issuing of a directive to this effect by the court, to trace. The tariff applicable under the Protection of Harassment Act 2011 would apply and costs would be borne by the applicant in the first instance, but the court could have regard to the actions of the parties when making a suitable order as it deemed fit. This amendment would help improve the finalisation of maintenance matters, which were currently being delayed by the absence of the respondent.
Section 9 & Clause 3: Subpoenaing the Person Responsible for Maintenance
Ms Ross said section 9 empowered a maintenance officer to cause any person to be subpoenaed to appear before a maintenance court to give evidence or produce documents. Clause 3 provided that the beneficiary of a maintenance order may also be subpoenaed, where the respondent applied for a reduction or discharge of the maintenance order. This was aimed at creating certainty around the subpoenaing of beneficiaries.
Section 10 & Clause 4: Maintenance Enquiries by the Court
Ms Ross said this clause aimed to limit delays by limiting the number of possible postponements by the court. It introduces a discretion on the presiding officer to make an interim order, pending finalisation, where it was necessary to postpone the case. Two requirements were necessary - a prima facie case for liability to maintain, and a finding that postponement would cause undue hardship to the applicant. This amendment would address the potential for respondents to use delaying tactics , which often led to undue hardship for the applicant.
Section 16(2) & clause 5: Third Party Payments of Maintenance
Ms Ross said the section provided for a mechanism whereby maintenance could be paid by a third party who had a contractual obligation to regularly make payments to the respondent, for example an employer or retirement fund. The case S v Nkoele held that a court must give the third party an opportunity to be heard on the feasibility of such an order. Clause 5 was amending section 16 in order to give effect to this judgement.
Section 17 & Clause 6: Orders by Consent
Ms Ross said section 17 allowed for an order to be made in the absence of the respondent, if the respondent had consented to an order in writing, and this was produced at the enquiry. Currently, the Act required the presence of the affected party, regardless of consent. Clause 6 allowed an order to be made in absentia, provided it was consistent with the consent and a copy of the order must be served on the absent party.
Section 18 & Clause 7: Orders by Default
Ms Ross said section 18 only allowed the court to make a default order if it was satisfied that the respondent had ignored a subpoena. Clause 7 aimed to empower the granting of a default order, where the respondent failed to appear in court despite knowledge of the subpoena or having been duly warned by the court to do so.
A consequential amendment was also made to section 9, clarifying that the beneficiary of a maintenance order could be subpoenaed where the respondent was seeking a reduction.
Section 22 & Clause 9: Substitution and Discharge of Maintenance Orders
Ms Ross said that in Purnel v Purnel the court held that a subsequent maintenance order replaced any former order completely. However, in Cohen v Cohen the Supreme Court of Appeal held that the order of a High Court was only replaced in so far as the subsequent order did so expressly or by implication. Clause 9 adopts the position stated in the Cohen v Cohen judgment.
Section 23 & Clause: Discretionary Transfer of Maintenance Order to Another Court
Ms Ross said at present the clerk of a court had the discretion to transfer a maintenance order. However, there were reports that this was done inconsistently and led to delays. Clause 10 amended section 23 to remove the discretion, and to establish a uniform manner in which transfers were to be conducted. Here again, the jurisdiction of a court was increased to cover an applicant who was employed within the territorial jurisdiction of a court.
Section 26 & Clause 11: Enforcement of Maintenance Orders
Ms Ross said failure to pay maintenance was regarded as comparable to a default judgement in a civil matter. However, the blacklisting mechanism currently treated defaulters as civil defaulters. Clause 11 therefore proposes a new provision for section 26, requiring the personal details of a maintenance defaulter to be handed to a business whose object was the granting of credit or the credit rating of persons.
Section 28 & Clause 12: Attachment of Emoluments
Ms Ross said that presently the Act only allowed the attachment of emoluments where a person had failed to pay maintenance and when a court suspended the warrant of execution under section 27(4). Clause 12 was now seeking to include the attachment of a debt under section 30, in instances where a court may order the attachment of emoluments, after hearing from the employer of the defaulter.
Clauses 13, 14, 15 & 16: Increased Penalties
Ms Ross said clause 13 proposed to increase the penalty for failure to pay, from its current maximum of one year imprisonment to three years. This clause also abolished the present discretion on the maintenance officer, instead now obliging that person to furnish the particulars of a person who had been convicted of an offence for failing to pay maintenance to any credit provider or credit rating business.
Ms Ross said clause 14 proposed to increase the penalty for wilful interruption of a maintenance enquiry or obstruction of maintenance court from six months to a year of imprisonment. Clause 15 proposed increasing the penalty for failure by a third party to pay money in terms of an emoluments attachment order from six months of imprisonment to two years. Clause 16 proposed increasing the penalty for not giving notice of a change of address or employer from six months imprisonment to a year.
Ms Ross said this clause created new offences for obstructing or hindering a maintenance investigator from exercising his powers or impersonating a maintenance investigator. The proposed penalty was a fine or imprisonment for a period not exceeding two years.
Section 41 & Clause 18: Conversion of Criminal Proceedings into a Maintenance Enquiry
Ms Ross said this section empowered the court to convert criminal proceedings into an enquiry, if this was desirable. Clause 18 allowed the court to do so at its discretion, giving effect to S v Magagula.
Clause 19: Short title and commencement
Ms Ross said that the majority of clauses, except for clauses 2, 11 and 13(b), would become effective upon promulgation of the Act. The other clauses required regulations, and therefore it was proposed that these take effect on a fixed date.
Ms Ross said in conclusion,that there would be a need for training of maintenance officials for implementation, although this was not new legislation, but the training needed only to be in the nature of refresher training, indicating the changes brought about by the Bill.
She added that the DOJ&CD had picked up some errors in the Bill, particularly the objects memorandum, and proposed that this be dealt with by way of Committee amendments.
Mr Swart said he supported these improvements to the maintenance legislation. However, as he understood it, the Maintenance Act was described as an interim Act already in the 1990s, and a Constitutional Court decision raised serious challenges around maintenance in 2002. He was aware that the SALRC only started dealing with maintenance in 2011. There was therefore a serious time delay in this crucial area, despite the SALRC having produced an “issue paper”. He wanted to know why the Committee was, at such a late stage, now required to deal with another "interim measure" and whether the SALRC was expected to complete its full review shortly. He also asked whether the amendments spoke to what was in the SALRC’s issue paper, and asked to what extent the DOJ&CD had engaged with the SALRC, to make immediate gains through the Bill.
With reference to the drafting of clause 2, he did not think it desirable to simply have a cross reference to the Protection of Harassment Act, as the latter act could be amended, which would then lead to complications, particularly since the list could easily be repeated in the present Bill. He said the definition of ECSP in the Bill was surely broader than the list of cellphone service providers in the Protection from Harassment Act, and that was another technical drafting concern. Lastly, he wanted to know if the cellphone service providers and NPA had given the DOJ&CD any feedback on the Bill.
Mr Horn referred to the tracing of defaulters under clause 2, and asked whether the Department had given any thought to the impact of the Protection of Personal Information Act. He thought that this Act said that a person charged with protecting another person’s information could only be required to divulge that information in the event of criminal proceedings.
Mr Horn was concerned that the phrasing of clause 5 could lead to delays in the finalisation of maintenance matters. While it could be acceptable for the employers to be given an opportunity to make representations, it was a different matter to preclude completion of the investigation before receiving comment from employers.
Mr Horn also felt that the phrasing of clause 11 may to be problematic, as it made it possible to blacklist someone with a maintenance order against him/her, on the sole basis of what may be an unfounded claim for arrear maintenance by the other parent.
Mr Mpumlwana said clause 1 expanded the Magistrates Courts’ jurisdiction and warned that this should be balanced with fair service to the respondent. He commented that clause 5 basically instituted a garnishee order and questioned what the position was if an order was granted against a person married in community of property. In relation to clause 6, he suggested adding the requirement of an affidavit to accompany an order based on an agreement where a party was absent, because of the potential for fraud. He asked if clause 7 required personal service of court papers on the respondent, before s/he was deemed to have failed to appear. He felt that clause 13 was perhaps too harsh, as it could prevent a potential avenue for respondents to maintain their dependants, and furthermore could be contrary to the National Credit Act. He therefore recommended further research on whether this clause was consistent with other legislation.
Ms Mothapo said this appeared to be a very progressive Bill, particularly as it protects the rights of children as enshrined in the Constitution and international law. It did this through provisions such as interim maintenance orders and the blacklisting of defaulters, and she pointed out that the courts had spoken of recalcitrant maintenance offenders using legal procedures to sidestep their obligations. She asked for clarity on clause 15, where the third party might be a government department or a company, pointing out that such an entity could not be imprisoned. She asked if the legal duty of parents ./ grandparents to maintain children would be altered in any way by this Bill.
Ms Pilane-Majake also felt this Bill was a step forward in the protection of rights of women and children in South Africa. She questioned clause 5, pointing out that she had been informed that the garnishee order system had been abolished under the National Credit Act, and therefore asked what system would be used. She differed from Mr Mpumlwana's views on the blacklisting clause. She was concerned that the Bill should contain further provisions, such as those relating to the determination of the quantum of the maintenance order, and a restriction on defaulter’s international travel. Furthermore, she pointed out that defaulters or respondents would often make use of lawyers, although the applicant or beneficiary could not afford legal representation. She suggested that such applicants should be assisted by Legal Aid South Africa. However, despite these concerns, she commended this as a good Bill, particularly the provisions dealing with interim orders, because at present only women who could afford to do so made use of section 43 of the Divorce Act for interim maintenance.
Mr M Maila (ANC) agreed that with his colleagues that the Bill was progressive. He was concerned about the clauses on increasing penalties for defaulters, commenting that it was actually counter-productive to imprison a defaulter who was supposed to maintain a child, and suggested that mechanisms should be found which did not jeopardise the children’s well-being. On the other hand, he understood clause 14 which criminalised interference with the enquiry.
The Chairperson agreed with Mr Swart that the issue was complex and commented that it was interesting that the women on the Committee welcomed the Bill. He said there could be no such thing as an "illegitimate child", for two people were involved in that child's creation, and this process should be used to put paid to that concept of illegitimacy.
Mr Jeffery said that, from a time point of view, public comment would be impending now that the Bill was with the Committee. Some of the points raised now almost seemed to be suggesting amendments, but that must be done at a later stage. In answer to Mr Swart's concerns about why this process had taken so long, he said that he had no detail, and, when he himself had sat on the Committee, he did not recall that Mr Swart had raised these concerns, so it was unfortunate that negative comment had now been given. The law reform process under the SALRC would take a few years, and the Bill’s provisions should be seen as a stop-gap measure. Public comment on the Bill must, of necessity, be restricted to the clauses actually in the Bill that were amending existing sections, but if the public did raise concerns with other sections that it was felt should also be amended, then the House may be approached for permission to consider them.
Mr Jeffery pointed out that imprisonment for defaulters was the maximum penalty and this was meant to serve as coercion for them to pay. He did not believe that there was any correlation or inconsistency insofar as the Protection of Personal Information Act was concerned, as this Bill was assuming that information would be released on the basis of a court order. The Memorandum on the Objects, which was attached to the Bill, noted that a consultative workshop was held with all relevant role-players and it was distributed to the ECSPs. He pointed out, in answer to the Chairperson, that the concept of illegitimate children no longer formed part of the law, except perhaps in relation to the child's right to take on the father's surname, and Parliament could perhaps look into that as a separate issue.
Mr Swart responded that he was not being negative, and Mr Jeffery was familiar enough with Mr Swart to know that, but he was concerned that Mr Jeffery, as representative of the executive, could not answer the question why there was such a delay. He said it was “unfortunate that he became personal, but he did know him well enough”. He asked if engagement with the SALRC would be useful at this stage.
Mr Jeffery said if Ms Ross could not adequately answer the question, he would send a written response to the Committee.
Mr Mpumlwana said that he was worried that although the "debtor's prison" concept was abolished years ago, the inclusion of imprisonment as the ultimate sanction might again be bringing in the concept "through the back door".
Mr Jeffery said there was a difference between an ordinary debtor and a maintenance defaulter; there was a legal obligation, which was considerably more serious than an ordinary debt, to maintain children.
Ms Ross added to the comments made by Mr Jeffery. In relation to whether the SALRC was consulted and how far it was into the process, she said in the lead up to the Bill the Department put together an interdepartmental working group, where the SALRC was represented, and that task team also participated in the consultative workshop after the Bill was compiled and consultation was under way. This Bill was needed now, because the law reform process was lengthy, with the issue paper only having been produced now. Even during the consultative process new proposals for amendment were received and forwarded to the SALRC researcher on the interdepartmental task team.
Ms Ross confirmed that the ECSPs were also physically consulted and they supported the inclusion of clause 2.
Ms Ross commented, in relation to clause 5, that requiring the employer to come before the court to moot the feasibility of the order may cause delays and perhaps this was one of the issues to be debated. However, given the penalties attached to non-payment on an emolument order, it was necessary to consult those responsible for payment. This linked to the question of how a company could be sanctioned for non-payment, pointing out that this penalty operated through the Criminal Procedure Act. In answer to whether the respondent was given a fair warning, before having to travel to the jurisdiction of the maintenance beneficiary, she pointed out that in practice the maintenance officer would issue a calling order, when that officer received the complaint that initiated the process. The amendments now provided for a case where the defaulter had been duly warned by the court to appear, or a subpoena had been issued, but that person still failed to appear. The current Maintenance Act already provided for the black-listing of defaulters, and in addition, the Department of Trade and Industry had also come up with similar measures to stop defaulters getting further credit by blacklisting. Ms Ross confirmed that the quantum was determined after both parties had made representations on their income and expenses, after which the judicial officer would make the determination. She said that a more detailed breakdown could be provided in the next meeting.
Ms Ross noted, in relation to the question on legal representation for applicants and beneficiaries, that legal representation was a constitutional right and the maintenance officer, as an officer of the court, was deemed to be the applicant’s legal representative. She added to Mr Jeffery's remarks on non-payment and penalties by confirming that non-payment of maintenance was a criminal act, but in practice, it was not the court's policy to imprison persons obliged to maintain children. The purpose of the provision was to ensure that defaulters were aware that they were contravening the law. This was the reason why the Maintenance Act made provision for conversion of criminal proceedings into an inquiry. She stated that she would revert to the Committee with more information on the other questions.
The Chairperson said the Committee would welcome further information, particularly on the quantum determination, comment on restriction of movement and legal representation matters, and would be engaging with relevant parties, perhaps including Legal Aid South Africa.
Mr Jeffery added to the point on legal representation that there were already maintenance prosecutors who would prosecute on the beneficiary’s behalf where there was criminal default. Further, there were maintenance officers and maintenance investigators. Creating a requirement that Legal Aid South Africa represent beneficiaries would lead to added costs, and this may not be necessary, in view of the clear roles of the officials, as described. However, if women felt that their needs were not being met, and this was picked up during oversight visits, he would welcome such complaints being made known to the Department. He confirmed that the basic level of quantum to be paid was determined by how much money the respondent had, and if this was little or nothing then the maintenance awarded would also be very little. He said that if other comment on restricting the movement of defaulters was raised during the public consultation process, it could be dealt with at that stage.
The meeting was adjourned.