Minister on National Council for Correctional Services appointments; Correctional Services contingent liability & legal services capacity; POPI Act appointments

Meeting report

The Chairperson welcomed the Minister of Justice and Correctional Services, who is going to give a broad overview of appointments. He also welcomed the NCOP Select Committee on Security and Justice.

Minister’s briefing
Minister Michael Masutha said that he hoped that the Committee had received the lengthy document on this subject already and he would not read through that document. The officials present will be able to give greater detail on any specific questions. The purpose today is to complete a process that remains incomplete as prescribed by law until the Department approaches Parliament. The Department earlier this year initiated a process to appoint new National Council of Correctional Services (NCCS) members because the previous members' term limits had expired. The Department did not start this process until two weeks before the previous NCCS term lapsed and this put it in a precarious situation last February. There was not sufficient time to embark on all the necessary steps to create a new NCCS. Thus, he was forced to extend the old NCCS by three months. The NCCS is a multi-sectoral statutory body that requires interaction from many bodies. He must appoint members of the public to this Council in consultation with Parliament. The Department thought it should consult Parliament as soon as possible to garner its concurrence with the appointments.

The Department invited members of the public to make nominations for the NCCS based on a list of criteria for the expertise an NCCS member needs. The Department has assessed the candidates based on this list and chosen the list of people before Members. The CVs of candidates should be in front of the Committee. Judging these candidates is the primary purpose of today’s meeting.

The Minister reported that since he had been appointed to his position, the Department had faced many court challenges on correctional services and parole. Two days into office, he heard that a court was compelling him to consider a long-outstanding parole application within thirty days. The Office of the State Attorney had not participated in the case because the state attorney had been involved in an accident before the case and thus a default decision was obtained in his absence. This was not the only pending matter that the Department had to deal with; there had been many high profile pending-decision matters. When he took office, there were over 2 000 parole applications.

The previous NCCS did not have the capacity to deal with this due to its members’ lack of time to work. Further, some of the previous NCCS judgments were not sufficiently meticulous. The Department ended up rejecting about 96% of parole applications in order to uphold the rule of law. Many of the applications had no evidence of victim participation in the parole process. The Department took a view that it should not grant parole without some effort to involve victims; the rights of victims must be upheld.

Another challenge has been the issue of so-called ‘political prisoners’ from special dispensations under the previous president. This matter has been stalled since 2008 due to multiple court challenges. The Department is still engaging with litigants on this matter. In the interim, it had been agreed that those who qualified for parole, about 50 people, should have their parole process expedited. He set up a task team for this. The work of this task team has helped the Department learn how to improve the parole system and identify necessary institutional reforms.

The Minister said that the fact that he was rejecting so many applications was an indication that the system, which should act as a sufficient filter, was not working. The Minister should be able to grant 100% of recommendations from statutory bodies; judges even head some of these bodies, but their work was not at a good enough level. He put in place structures to improve these bodies. For example, the Medical Parole Review Board. The old board was composed entirely of General Practitioners, so when cases of specific conditions arose, the board could not handle such cases themselves. After consultation with the Minister of Health, the new Medial Parole Review Board will now have at least half of its members be experts in pertinent field.

With the NCCS, we also must identify and include the pertinent expertise to beef up the NCCS. However, the NCCS also should be able to advise the Department on policy. The previous NCCS could not do this; perhaps this is why the parole system got so bad. The Minister was impressed with the new NCCS and its diversity of skills. His rate of approval of applications has increased; the new NCCS is more meticulous. If the application is not compliant, the new NCCS sends the application back to the person with instructions on how to fill in the gaps. This upholds the rights of inmates as well.

Offenders should not stay in jail longer than necessary due solely to administrative reasons. Care is taken to make sure that offenders go through the necessary processes and that the effect of programmes on offenders is observed. Parole boards should have very little work to do if the administrative work is done correctly. There are 243 correctional centres throughout the country with 42 000 employees of varying levels of skills. The Auditor-General’s report was concerning, but the Department is addressing these challenges. Please accept our good faith that the Department is doing everything possible to turn the system around.

We have sent officials overseas, for example to the US, to observe how systems work better in other countries. We hope to complete the task of creating a new NCCS in one year, but this may not be possible. We have highlighted a number of critical policy priorities for reforming the system. I have already spoken about victim participation; we are in the process of reviewing how effective the implementation of victim participation has been. We are compliant with international conventions on offender policy. For example, the St Albans matter in which a gang member killed a correctional facility official, required significant clean up to the extent of almost war. However, these offenders ran to the UN and claimed mal-treatment and torture that resulted in a finding against SA by the UN that the Department intends to challenge. Previous cases have found on the side of SA that officials did not act too heavily. These officials work in extremely difficult conditions.

The Department has a dire shortage of specialised skills needed to reform the system. We have disposed of three out of four political prisoner issues.

Ideally, the Department should have approached Parliament before finalising these submissions, but we submit these matters for you to deal with this.

Discussion
Chairperson Motshekga said that he had requested a committee assistant and has not received one. However, various members have been taking copious notes and there will be a recording. Does everyone agree that the Committee will be able to create a sufficient report?

Ms C Pilane-Majake (ANC) agreed. Mr J Selfe (DA) agreed.

Chairperson Motshekga said that the Committee reserves the right to make variations to the recommendations from the Department. The Minister was generous to take the Committee through the challenges and the interventions by the Department. The Committee thus does not need to analyse the “earth and the heavens”. The Minister needs our support. I hope that the following discussion will not be overly analytical.

Mr J Selfe (DA) thanked the Minister for his thorough explanations. He pointed at that, according to the Correctional Services Act Section 83(2)(h), the NCCS consists of ‘four or more persons, not in the full-time service of the State appointed as representatives of the Public in consultation with the relevant Parliamentary Committees’. In 2010 this Committee had an identical interaction regarding the Committee’s oversight on the NCCS. There is no doubt that the previous NCCS was unlawfully constituted. We can give our approval after the fact, but in the interim the NCCS has made recommendations to the Minister that may very well be ultra vires because the procedure of the Act has not been followed. We have been given names and CVs, but the Committee does not know how these people were selected from the larger list and whether these people are the right ones. The Committee needs to consider all applications to comply with the Act properly. Giving an ex post facto approval to this would be wrong. I urge the Department to evaluate the NCCS’s decisions in the interim to decide whether those decisions are open to legal challenge.

Chairperson Motshekga asked whether this situation is exactly the same as the interaction with the previous Minister.

Mr Selfe replied that the situation was actually similar, but not identical. The previous Minister came with a group of eight people and said this is whom we want for the NCCS. We said that we want to know who else applied. However, the previous Minister waited until after consulting Parliament to make the appointments.

Chairperson Motshekga asked whether that procedure was corrected. Did she appoint those eight people?

Mr Selfe said that the previous Minister gave the Committee all the applications after that and then the Committee came back and approved the nominations.

Mr S Swart (ACDP) said that this cannot be a rubber stamping process. He worried that, if the procedure is not followed properly, appointments can be challenged in review. The Minister has alluded to the fact that cases have been brought in the past relating to the review of decisions. When considering other appointments, the Committee gets all the CVs. Though this is different because the phrase is ‘after consultation’ rather than ‘in consultation with’, perhaps we need to get legal clarity on these terms.

Ms G Breytenbach (DA) was concerned that only a small number of CVs have been presented and that some of these people nominated are not qualified. The Minister surely does not envisage that we will merely rubber-stamp his decisions.

Mr L Mpumlwana (ANC) said that the Minister has been under much pressure and that he is requesting us to retrospectively approve. There are only six months left; the Committee should not make much fuss. I agree that things should have been better, but the child has been born now and we must act accordingly. I am not sure that these approvals will be subject to legal challenge.

Ms T Wana (ANC; Eastern Cape) said that, according to the law, processing all the CVs is an administrative process, not one for members. The Minister explained this administrative process to members. With the NCCS, in its Constitution Section 83(2)(b) Structure of National Council, it be ‘a magistrate of a Regional Division appointed after consultation with the Chairperson of the Magistrates Commission’. We cannot afford to process 2 000 CVs. It is not our prerogative.

Ms Pilane-Majake (ANC) said that the Minister admits that the Department has mishandled this process. This is a cause for concern for the Committee. The Committee must decide whether to accept the apology. In my view, we should focus on the future. Mr Mpumlwana has indicated that there is only six months for this current NCCS. When this time ends, we should expect the Department to comply with Section 83 of the Act. We cannot solve the mistake by creating further problems. The Committee must believe in itself and come up with a solution. The solution is to accept in the apology and participate in the next process.

Chairperson D Ximbi (ANC; Western Cape) agreed with his colleagues. The Committee should condone this last five months and start fresh.

Mr Selfe sympathised with the Minister but he asserted that the four appointments to the NCCS for this time period was unlawful. The Committee should not condone unlawful behaviour. One of the ways around this is to ask these four to stand down until the Committee can appoint them properly. We have to find a way to escape a legal difficulty.

Mr Swart asked whether it would be possible to get an urgent legal opinion on this matter, perhaps from parliamentary legal advisors?

Chairperson Motshekga noted that many members are legal experts. These matters affect people in practice. The Minister admits his mistake that consultation did not take place. These board members have already served six months. Parliament rises at the end of this month. The Minister has not come here arrogantly. These are interim arrangements to address a major issue. Let us be practical on a serious matter of national interest. Our responsibility is to assist.

Ms Pilane-Majake supported the Chairperson’s motion. She requested to hear a counter-motion against accepting the apology in the national interest.

Ms Mothapo said that the Committee is aware of the non-compliance by the Department with Section 83. She noted the concerns of Mr Selfe about ultra vires action, but to err is human. She supported condonation and ratification.

Chairperson Motshekga noted that the Minister acted within his powers, but simply failed to consult.

Prof T Msimang (IFP) said that he trusts the Minister. Will he be happy with the Committee granting condonation for this omission? This issue could follow him. I recognise that there is not enough time to do things by the book and I support condonation.

Chairperson Motshekga noted that the Minister is dealing with a legacy issue.

Mr Mpumlwana noted that there was no consultation. However, the Committee must solve this problem instead of legally complicating things. People make the law. I condone these nominations.

Mr M Mohapi (ANC; Free State) asked whether the Minister has appointed any MP as a member of the public. Section 83-2(h) says that the NCCS consists of ‘four or more persons not in the full time service of the state or members of Parliament appointed as Reps of the public after consultation’. To me, if that provision gives two options for the Minister, and my interpretation says that the Minister can appoint MPs after consultation.

Chairperson Motshekga said that that is correct.

Ms Breytenbach said that this interpretation is incorrect. Members of parliament are excluded.

Chairperson Motshekga noted that there are two different opinions, but that this is not the pertinent discussion. Let us not get distracted.

Mr Mohapi condoned the Minister’s appointments.

Ms Breytenbach assured the Committee that she does not direct this at the Minister personally, but she cannot support fixing one unlawful procedure with another unlawful condonation. She cannot associate herself with this contravention of the law. The only thing that is relevant is whether the Committee is acting lawfully. The DA may have to take this decision on review if the Committee passes this condonation.

Chairperson Motshekga said that the term ‘unlawful’ is wrong.

Ms Breytenbach asserted that the ‘must’ in the Section is peremptory.

Chairperson Motshekga said that the Courts are open on review, but the Committee cannot fail to take decisions based on threats of review.

Mr Mpumlwana said that lawyers are always fighting. We must solve a problem. This is not a grave mistake. The mistake is irregular but not illegal.

Minister Masutha said that, if there was a procedural flaw, the first question would be who has suffered prejudice? If any person affected prejudice from the NCCS by virtue of the NCCS constitution, such a person would be entitled to show that prejudice to a court. The prejudice here is the lack of consultation. The Department wants to correct this omission of consultation. The Department has prejudiced this Committee and is trying to make good. We beseech you to accept our apology and to help us.

Chairperson Ximbi said that members have raised their concerns and we have heard calls for condonation from both Houses.

Chairperson Motshekga called for a show of hands of those in support of condonation. Nine members supported including the ANC and IFP members. Five members opposed including DA and ACDP members. He thanked the Minister for coming. He excused the NCOP members and thanked them for coming.

Mr Selfe asked that, in the future, the Committee receive all applications for the NCCS.

Chairperson Motshekga agreed that this would be correct.

The Minister said that, of the 29 applications, 15 were completely unqualified. The pool was very limited. This information should be available.

Suspension of Magistrates: Magistrates Commission briefing
Chairperson Motshekga said that the Committee has deliberated extensively on magistrates who had been suspended. He asked the Magistrates Commission representative to speak on the specific cases.

Mr Hans Meyer, Magistrates Commission, said that there are five reports that must be dealt with by Parliament.

Chairperson Motshekga said that transformation is an ongoing issue. Is there an effort to bring new blood into the system?

Mr Meyer replied that he wanted to bring his younger black female colleague but that she was otherwise engaged. With regards to the provisional suspension, the report shows that Mr Hole took the matter to high court. The matter is still in the high court. The disciplinary matter is pending the outcome of that high court application. This is just a progress report for the Committee to note. The Committee could technically lift the suspension, but we do not recommend that.

Ms Pilane-Majake asked for a presentation and then an engagement afterwards. For example, can we close the matter of Mr Hole before moving on? How far is the matter in terms of his suspension? The report says that, out of 28 matters, four are outstanding.

On the matter of Mr Hole, Mr Meyer said that the disciplinary hearing is being held in abeyance in the light of the High Court case.

Chairperson Motshekga said that the Committee cannot consider lifting the suspension while these processes are unfolding.

Ms Van Schalkwyk
Mr Meyer explained the case of the provisional suspension of Ms Van Schalkwyk of Kempton Park that is also currently in the high court.

Chairperson Motshekga said that, again, the Committee cannot take decisions on ongoing court matters.

Mr Kgomo
Mr Meyer explained the case of Mr Kgomo of Randburg. The criminal matter has gone forward. The National Prosecuting Authority (NPA) requested the Commission not to commence with its disciplinary hearing against him since it would prejudice the State’s criminal case against him.

Chairperson Motshekga said that, again, the Committee cannot take decisions on ongoing matters.

Mr Morake
Mr Meyer explained the case of Mr Morake of Lichtenburg.

Chairperson Motshekga said that, again, the Committee cannot take decisions on ongoing matters.

Ms Malahlela
Mr Meyer explained the case of Ms Malahlela of Delmas.

Chairperson Motshekga said that, again, the Committee cannot take decisions on ongoing matters.

Mr Zantsi
Mr Meyer said that the Committee could decide whether to uphold the provisional suspension of Mr Zantsi of Laingsburg who was allegedly drunk on the bench and, when pulled over for drunk driving, he verbally abusive of the female officer. The community is of the view that he should be suspended.

Chairperson Motshekga said that this is clear-cut if a magistrate was drunk on the bench.

Ms Pilane-Majake noted that, though half of cases today concern females, only a small percentage of magistrates are female. The Committee should look into this.

Chairperson Motshekga said that Ms Pilane-Majake is right, but justice must be justice no matter who is involved.

Mr Mpumlwana asked for more information on the case. He wanted to hear the other side of the story. We cannot always suspend people based on the recommendation of the people in power.

Mr Meyer said that this is a provisional suspension pending a misconduct enquiry.

Ms Breytenbach said that, in the report, the magistrate admits to having a drinking problem. She called for the Committee to endorse the provisional suspension.

Chairperson Motshekga agreed that the Committee endorses the provisional suspension.

Department Legal Services: briefing by National Commissioner
Mr Zach Modise, National Commissioner of the Department of Correctional Services (DCS),introduced his colleagues and then spoke on the capacity of the DCS Legal Services to deal with litigation matters and a listing of DCS contingent liabilities.

The Department has put more emphasis on ensuring that it only pursues cases where it has reasonable prospects of success. The Department has since reviewed its performance indicator in its Annual Performance Plan as follows: “Percentage of finalised cases successfully defended”. Internal processes have been reviewed to cater for this development. Letters of demand are investigated in preparation for summons. If there are no prospects, claims are settled on receipt of summons. All summons received are reviewed by the Acting Director of Litigation in consultation with the relevant Regional Coordinator. If there are no prospects of success, authority is sought for the settlement of the claim. State Attorney and Counsel opinions are sought, where necessary. Cases are assessed throughout the litigation process. Where it is clear that prospects of success have diminished or where the DCS is held liable on merits, the mater gets considered for settlement on quantum to save costs.

As for parole matters, all court matters relating to inmates serving life are handled at head office. In respect of motion applications by inmates who either have reached their parole consideration date or at the time of instituting court proceedings against the Department had not yet been considered, attempts are made to settle by ensuring that such inmates are considered without putting up unnecessary legal defences.

As for labour, all matters for review of arbitration awards are submitted to the Deputy Commissioner of Legal Services for a decision on whether or not the Department has any prospects of success in the review.

The structure of Legal Services is currently being reviewed to further increase its capacity. All senior critical posts at head office have been filled or are in the process of being filled. The post of Deputy Commissioner of Legal Services was filled in July 2015; the post of Director of Legal Contracts Management was filled in December 2014; the post of Director of Legislative Drafting was filled on a two-year contract in October 2015; the vacant post of Director of Litigation has been advertised with a closing date of 09 October 2015. All critical senior posts of Regional Coordinators are filled, except for KZN and recently the Free State and the Northern Cape. The Occupation Specific Dispensation (OSD) makes it difficult to fill posts efficiently due to its high entry requirements.

Department Contingent Liabilities: briefing by National Commissioner
Mr Modise referred to the DCS 2014/15 qualified audit due to its unverified contingent liabilities register for claims against the state.

The DCS failed to submit a comprehensive register of claims against it timeously to the Auditor-General. When the register was eventually submitted, it was too late for the Auditor-General to verify the register with various State Attorneys, hence the qualification. Corrective measures have been planned and undertaken to ensure that the register is prepared timeously, verified with the State Attorney, subjected to an internal audit process, and provided to the Auditor-General on time. The 2014/15 register has been reviewed and updated. In November 2015, the DCS will write to the State Attorney to have that register verified. In January 2016, the register together with all the supporting documents will be subjected to an internal auditing process. The DCS will engage with the Auditor-General as early as February 2016 so as to afford ample time for queries.

Mr Modise presented a table illustrating the contingent liabilities in the categories of damages, defamation, bodily injury and assault, unlawful detention, compensation, death in detention, unlawful deduction, breach of contract, rape, pain and suffering, damage to property, motor accidents, injury in prison, loss of support, and other. In total, the opening balance of the 2104/15 financial year was R801 million and the closing balance as of 31 March 2015 was R791 million.

Mr Modise indicated that, although the register used to be out of date, it is now being updated and will not result in future qualification. DCS has put special measures in place to fill vacancies.

Discussion
Ms Mothapo, who was acting chairperson,  thanked the DCS for the presentation. The Committee looks forward to the DCS getting an unqualified audit. She called for questions.

Mr Mpumlwana asked whether the DCS has proactive measures to prevent litigation. Are DCS lawyers only there to interact with other lawyers? Do your lawyers have libraries? Is there a lawyer in each centre? What happens if an inmate has concerns, for example, about cellmates smoking? Do lawyers consult on such matters? Are the lawyers well-equipped?

Ms Pilane-Majake wanted to emphasise skills transfer. If someone leaves, legal processes should not stop.

Ms  Mothapo asked how many cases does the DCS settle out-of-court? The DCS should attempt to avoid unnecessary human rights lawsuits through education of its staff.

The Commissioner said that, yes, sometimes lawyers seem as if  they just want to employ their friends. We strive to avoid wasting state resources. Before we enter into any matter, we do a thorough analysis and consult senior counsel.

We try to separate offenders in our facilities based on many factors, including smoking. However, this separation can fail unless an offender complains. It is imperative that we observe human rights. We are striving to protect them, although it has been difficult.

Skills transfer has been a challenge. This is why we are trying to bolster our legal services. We need to keep up our records better. We shall provide the statistics requested.

The Deputy Commissioner: Legal Services said that the DCS has sufficient policy space to improve on these matters. Hopefully each management area will have a lawyer.

Mr Mpumlwana requested that the DCS beef up legal services for proactive rather than reactive measures. For example, putting cameras in cells. Do your managers listen to the lawyers? Do the lawyers have access to libraries? Why employ lawyers if you are just going to consult counsel?

Deputy Commissioner said that the lawyers have access to an online library. We are not always sending matters to counsel.

Chairperson Motshekga asked what Mr Mpumlwana was suggesting.

Mr Mpumlwana called for workshops instructing people on how to avoid human rights violations. Cameras would also help. In general, the DCS should pursue proactive measures to prevent litigation.

Chairperson Motshekga observed that the contingent liability has been increasing and that the Committee perhaps should look further into this.

Ms Pilane-Majake said that "any action by the DCS will be criticised".

The Commissioner said that the contingent liability is improving because we are fixing the register. He thanked the Committee for its support. Though offenders can act provocatively, law enforcers must be above criminality.

Traditional Courts Bill delay
Mr M Motshekga (ANC) said that the Committee is now focused on the transformation of the legal system. Justice is not accessible to many because the traditional courts system is left out of the legal system. For many people, the only justice they know is the traditional court system. Many people do not want lawyers and cannot afford lawyers. Work has yet to be done about paralegals and community courts. Courts and prisons are overcrowded. As for the statute from 2013, this Committee did not exist in its current form then. We were told that the Traditional Courts Bill would be reintroduced this year, but there is nothing on this Committee’s agenda. Is this Committee’s recommendations not taking seriously? What will we say to the public next February? What information do rural people have to protect? Justice must become more accessible to the people; we must transform the system. Parliament makes the laws, after all.

Mr Henk Du Preez, State Law Advisor, apologised that he is unable to respond. The legislative slate is consulted on with the Minister regularly.

Protection of Personal Information (POPI) Act regulator appointments
Mr Henk Du Preez, State Law Advisor, noted that Deputy Minister John Jeffery, who was to have been involved in the workshop, sent his apologies.

The Protection of Personal Information Act deals with the processing of the protection of personal information. The Act will introduce eight conditions for this processing and will entail the whole information process. This impacts individuals when decisions are made about people when there is mistaken or outdated information. The Act will assist in fighting crimes such as identity theft. This Act will ensure consumer confidence in E-Commerce. There are pertinent two international bodies: the Council of Europe and the Organisation for Economic Coordination and Development. The Council was more concerned with human rights whereas the OECD was more concerned with economics. In 1995, the EU tried to protect data in countries even where there are not protections. Today, over 100 countries have acts similar to this. In Africa, the AU has a similar convention but only recently.

Chairperson Motshekga interjected and asked whether the heavens would fall if this matter was not finalised this year.

Mr Du Preez replied that the process now deals with the appointment of the potential regulators. In theory, it would be good to have these regulators in place to help with the implementation of the Act. At the previous meeting, he said that only those provisions dealing with the Establishment of the Act have been implemented. The rest of the Act creates rights; to enforce rights we need an information regulator.

Chairperson Motshekga feared domesticating European law through the back door. He again called for prioritising matters that benefit the majority of people.

Mr Mpumlwana said that this legislation is likely important, but how urgent is this?

Prof Msimang said that the presentation was rushed. The time is not opportune; there is not a quorum present. Continuing will not be helpful.

Mr Mpumlwana asked for the presentation to be emailed to Members.

Ms Mothapo asked whether this legislation addressed the major social ills in this country. How do I justify this Act to people in Limpopo? A presentation on the latter would be appropriate.

Ms Pilane-Majake asked for this matter to be delayed because many members are not present. However, information can be important to South Africans. Information creates war and peace and both builds and destroys people. Some countries like China have shown Google the door; we should research this. This country has the Promotion of Access to Information Act and challenged the Protection of State Information Act. When you put these things together, it seems as though we are talking in a schizophrenic manner.

Chairperson Motshekga agreed that Google is banned in China. He also said that South Africa has not yet domesticated any AU conventions. A workshop on this issue in conjunction with other relevant departments is necessary. The legislative programme must be beneficial to the people. There will be another POPI workshop in the next year.

Mr Du Preez explained that issues with Google are directly addressed in the legislation. There are also provisions to protect children. This Act would apply to the manual processing of information in rural areas.

The Chairperson said that protecting children is one thing, but the main goal seems to be protecting business. However, let us not pre-judge this; there will be a workshop. He requested the presentation. This is a political issue.

He adjourned the meeting.