Judicial Inspectorate for Correctional Services (JICS) report

Meeting report

The Chairperson introduced an observer to the meeting, Justice Johann van der Westhuizen with whom the Chairperson had studied in Germany in the 1980s. He was at the centre of the turning point of South Africa's human rights discourse and the creation of the new Constitution in 1996.

Judicial Inspectorate for Correctional Services (JICS) briefing
Mr Michael Masondo, JICS Acting Chief Executive Officer, said the purpose of the presentation was to report to the Committee on the impact of its investigations, its findings and recommendations moving forward as well as to address the recent outbreak of leptospirosis at Pollsmoor Correctional Centre.

Mr Masondo cited the legislation that was responsible for creating JICS' mandate. Section 85 of the Correctional Services Act of 1998 provided the groundwork for the JICS mandate such that JICS could facilitate the investigations and inspections of correctional centres. JICS is accountable to the Minister of Justice and Correctional Services.

The functions and core responsibilities of JICS are to:
- report on the treatment of inmates in correctional centres and any poor or corrupt practice in those centres.
- deal with complaints received from specific sources and allow for exceptional cases where it will deal with complaints received directly from Independent Correctional Centre Visitors (ICCVs).
- submit a report on each inspection to the Minister and Portfolio Committee on Correctional Services.
- submit an annual report to the Minister and the President.
- conduct an investigation by having an enquiry and holding hearings.
- assign functions to inspectors (except in conducting a hearing) and make rules not inconsistent with the Act.

The first strategic objective of JICS is to: "provide effective independent oversight relating to the treatment of inmates and the conditions in the correctional centres and Public-Private Partnerships (PPPs) facilities". This objective is measured through indicating the percentage of correctional facilities and PPP facilities inspected about the conditions and treatment of inmates. In 2013, JICS inspected 38% of all facilities; in 2014, they inspected 37% and in 2015, they estimate they have investigated 41% of all facilities. By the end of the 2018/19 year, JICS hopes to have reached their medium-term target of inspecting 100% of facilities.

The second way of measuring the strategic objective is to measure the percentage of unnatural death reports received from the DCS and to provide feedback to stakeholders within thirty days. Since the inception of this strategic indicator in 2013/14, JICS has been able to reach this objective 100% of the time and is able to give adequate feedback.

Investigations
Mr Masondo noted that JICS conducts investigations into allegations of gross human rights violations. The purpose of the investigation is to test the veracity of the allegation, to ensure the safety of the inmate, and to make findings on guilt and make recommendations to the DCS for remedial action. Between July and December 2015, Mr Masondo said that six investigations were conducted. These have not been finalised, although prima facie evidence suggests that officials were involved in the acts of violence against inmates.

Inspections
JICS has developed and implemented the National Inspection Plan (NIP) in line with its core responsibilities. There are four regions in the country: the Southern Management Region (SMR), the Eastern Management Region (EMR), the Northern Management Region (NMR) and the Central Management Region (CMR). The SMR had a planned target of ten inspections and eleven were conducted. The EMR had nine planned inspections and five were conducted. The NMR had ten planned inspections and seven were conducted, and the CMR had eleven planned inspections and eight were conducted. Thus, of the total forty planned inspections, thirty-one took place, making the percentage of investigations conducted 77.5%.

The inspections had eight key focus areas:
1. Centre population vs human resources and the Head of the Correctional Centre (HCC)'s view on the challenges:
- It was found that some centres remain very overcrowded, particularly those in urban areas. The main challenges are staff shortages, infrastructure problems and overcrowding.
- JICS had recommended that DCS should appoint more professional staff so that all human resource energy goes to filling vacant positions. DCS should also decrease the number of remand detainees to reduce overcrowding in line with section 49G of the CSA.
JICS found that DCS mostly complies with Operation Hira and section 49G of the Correctional Services Act.
2. The conduct of officials, particularly those accused of using force against inmates:
- It was found that in some cases, officers exceed the required force needed to stabilise a situation which leads to allegations of assault and even torture during surprise mass searches of centres.
- JICS had recommended that the searching should be conducted in a humane manner and that the searching operations should be videoed.
- JICS found that with respect to compliance, the number of complaints had decreased showing greater compliance.
3. The state of the physical infrastructure:
- Majority of centres are in need of renovations.
- JICS had recommended that DCS should enact plans to effect proper maintenance of the centres.
- JICS found little evidence of compliance; the Department of Public Works (DPW) is responsible for all maintenance in excess of R50 000.
4. Provision and adequacy of health care services:
- It was found that in rural areas, nurses were not appointed, but on the whole, health care was adequate.
- JICS had recommended that DCS should consider appointing nurses permanently.
- JICS found compliance in line with Operation Hira to attract scarce and critical skills in Correctional Centres.
5. Provision and adequacy of rehabilitation and educational programmes:
- It was found that in remand centres especially, there were no programmes in place.
- JICS had recommended that DCS should consider implementing programmes in all centres.
- JICS found that there was compliance only in centres dealing with sentenced inmates.
6. Communication with families and visitors:
- It was found that in smaller and older centres, the visiting areas were not adequate or suitable, and some centres were difficult to access with public transport as they are outside of towns and cities.
- JICS had recommended that DCS should work with other organisations to organise transport for visiting days.
- JICS found some compliance as DCS did sometimes provide transport for visiting families.
7. Exercise and recreational time:
- It was found that in some cases inmates were not given their standard one hour a day exercise time.
- JICS had recommended that DCS should afford this minimum requirement and if possible, it should be outside.
- JICS found that in some cases DCS did not comply.
8. Vulnerable inmates:
- It was found that vulnerable inmates (women, children, disabled people) are separated from the general population.
- JICS had recommended that DCS remain vigilant and that they identify the vulnerable inmates upon arrival for their safety.
- It was found that DCS is compliant.

Mr Masondo then went on to address the Complaints Management System. He said that they received complaints from either ICCVs, or Legal Services Complaints Units. From the ICCVs, of 18188 complaints received, 18075 were resolved at the correctional centre level for the period of October to December 2015. The Management Information System (MIS) is able to provide the history of complaints effectively, although it still needs to be upgraded to make the resolution of complaints more efficient. From Legal Services Complaints Unit, there are now twenty-three categories of complaints from which to choose, among which are: assaults, transfers and parole. These categories expedite the complaints resolution system and allow applications for parole, for example, to be processed faster.

Mandatory reporting
There are four categories that the HCCs are required to report:
1. Deaths (as per section 15 of the CSA):
In the 2011/2012 year, there were 48 unnatural deaths reported.
In the 2012/2013 year, there were 57 unnatural deaths reported.
In the 2013/2014 year, there were 46 unnatural deaths reported.
In the 2014/2015 year, there were 46 unnatural deaths reported.
In the 2015/2016 year, the results are not finalised, but there have been 66 unnatural deaths reported.
JICS noted that the number of deaths is verified by DCS each quarter.

2. Segregation (as per section 30 of the CSA):
In the 2011/2012 year, there were 24 appeals.
In the 2012/2013 year, there were 7 appeals.
In the 2013/2014 year, there were 32 appeals.
In the 2014/2015 year, there were 35 appeals.
In the 2015/2016 year, the results are not finalised, but there have been 24 appeal applications.
It was found that inmates are referring the appeals applications to the Inspecting Judge as per the Act.

3. Mechanical Restraint (as per section 31 of the CSA):
In the 2011/2012 year, there were 7 appeals.
In the 2012/2013 year, there were no appeals.
In the 2013/2014 year, there were no appeals.
In the 2014/2015 year, there was 1 appeal.
JICS noted that there had not been many appeals by inmates on mechanical restraint.

4. Use of Force (as per section 32 of the CSA):
In the 2010/2011 year, there were 10 reported cases.
In the 2011/2012 year, there were 50 reported cases.
In the 2012/2013 year, there were 83 reported cases.
In the 2013/2014 year, there were 191 reported cases.
In the 2014/2015 year, there were 461 reported cases.
JICS noted that in 2012, along with DCS, a new reporting tool was implemented which aims to correct a great deal of underreporting.

Outbreak of leptospirosis at Pollsmoor
Mr Masondo said that in August 2015, there was an outbreak of the disease leptospirosis. On the 29 and 30 June 2015, preceding the outbreak, JICS found that:
• warm water was not regularly available.
• inmates were not provided with beds and some therefore slept on the floor.
• meal times were not served per legislative requirement.
• the level of hygiene in the particular passages C, D and E units was unacceptable.
• the centre was overcrowded.
After the outbreak of leptospirosis, a fifty-two year old male died and the reported cause of death was noted as "natural." It was found that the cause of death was septicaemia and not leptospirosis.

Administration of JICS
Mr Masondo said that post their establishment, there were 101 posts: 44 of which are permanent and 42 are in the process of being transferred from DCS to JICS. The remaining 15 posts are unfunded and unfilled. Thus, 80% of posts are filled, 17% of posts are vacant and 3% of posts are dormant because some centres are undergoing renovations. In order to make JICS more effective and to deal with some of the shortcomings, Mr Masondo recommended that JICS should be decentralised to all nine provinces, instead of four major regions. He said JICS invited members of the Committee to visit correctional centres.

Discussion
The Chairperson thanked Mr Masondo for the presentation and noted that JICS is an independent entity and they can see the relationship between JICS and DCS. The Chairperson commented that many entities said decentralise just as Mr Masondo had requested. However, it would perhaps limit the effectiveness of the organisation.

The Chairperson said that families are important sources of complaints because they are closest to the inmates, although much has changed. In the 1980s there were advice centres in communities where people could go and talk to paralegals and seek advice to deal with their problems. These centres do not exist anymore and people often do not have the money to travel all the way to the centres to lodge complaints for those inmates.

The Chairperson noted that DCS often comes under fire unnecessarily and often bears the brunt of society's weakness. The problem is not necessarily with DCS, but rather with society as there has been a moral degeneration of society where thousands of people are in conflict with law and then the criminal justice system has to deal with that. The system does not always have the capacity to deal with large volumes of cases so to expect correctional centres to provide solutions would be unrealistic because it is primarily a societal issue.

The Chairperson commented on the problem of overcrowding because it enables the spread of disease. He said they were luckily as their new Inspecting Judge understands this problem and has not just expected DCS to deal with all manner of problems. On the matter of the Committee visiting the facilities, he said that it is not necessary because the Members will come back with the same findings as DCS and JICS.

Mr W Horn (DA) thanked Mr Masondo and JICS for the presentation. He asked there was to be an estimated performance for the year of 2015/2016 of 41% of targets inspected where the actual performance of inspections was measured at 77.5%. This is particularly odd when three of the four regional centres are under performing. He noted these numbers do not add up. On the issue of the separation of vulnerable inmates, Mr Horn said that Lesbian, Gay, Bisexual, Transgender and Intersex (LBGTI) members were previously considered to be vulnerable and if they have been removed from the vulnerable category, why was that so.

Mr Horn commented on the complaints system through the ICCVs and asked how people know about those services offered by JICS and if the availability of those services is known by the families. The independence of JICS is also an issue due to the question of its budget received via DCS. Previously, JICS has indicated that their independence has been eroded by budget constraints and he asked for comment on whether that is still the case.

Ms G Breytenbach (DA) disagreed with the Chairperson about visits and said that visits to the facilities is a good idea. She said that she and Mr Selfe visited Pollsmoor after a reported rat infestation and there are gross human rights violations there. By visiting, the Committee can address issues such as hygiene and overcrowding more effectively. She noted that other issues included people being held in remand centres for years because they were unable to pay small bail amounts of R500 to R1000. It was a violation of their rights to be kept in remand for so long just because they cannot pay a small amount of bail. Remand detainees need to be dealt with because the numbers are staggering. She did not understand why they needed to be kept in prison awaiting trial when the prisons were already overcrowded. She was worried about assault and torture and asked what happens after the JICS reports on this. Are officials prosecuted if are found to have assaulted someone?

Ms M Mothapo (ANC) also noted overcrowding and asked that the Committee come together to find a viable solution. She commented on a case where the Constitutional Court found DCS to be liable for the outbreak of a disease and asked in lieu of this, how DCS was controlling that issue to ensure it did not happen again. She asked how often the HCCs apply section 49(G) of the Act to deal with overcrowding. Ms Mothapo noted that the JICS regions are not in line with DCS regions and asked how that worked logistically in comparing figures and outcomes.

Ms M Pilane-Majake (ANC) said that the inmates should learn to do repair maintenance as a part of skills development so that it alleviates some of the pressure on DCS. This can include painting, the repair of leaking pipes and general upkeep, and it will ensure that the inmates maintain their own living facilities for their own betterment rather than just waiting and relying on the Department of Public Works to maintain facilities. As a country, South Africa has the ability to articulate problems well, but we cannot find solutions for those problems. We need to become a solution-oriented country to deal with the plethora of challenges we have and creating skills development programmes for inmates is one of those solutions.
 
Ms Pilane-Majake noted that deaths are decreasing but she asked what the causes of the deaths are and she asked for a full report on the matter. She was concerned about the use of force escalating and this is related to the moral decay of society. People, and inmates alike, know their rights but they are not aware of their responsibilities and if we go back to the drawing board we can find a better way to improve society. She understands that officers may become frustrated and use force to deal with overcrowded areas but this then comes back to the ±44 000 remand detainees. If this issue is dealt with, it would alleviate many of the problems associated with overcrowding. She commented on the recommendation from JICS that other organisations should assist in creating transport to facilities and suggested rather that government itself do this as it is within their mandate. She asked for actual numbers so that the Committee could get an idea of the need.

The Chairperson addressed Mr Masondo and said often entities appeared before the Committees wanting independence without having regard of the Constitution and he asked why that would be so. It is so that those entities can determine the budget themselves. He endorsed the point Ms Breytenbach raised about those being kept in remand facilities due to their inability to pay R300 bail. He asked why so many people are in conflict with the law and said that a way to deal with that could be traditional courts and community courts. The Chairperson said that we want to create Europe in South Africa where first world systems do not work for South Africa as we have things like informal settlements, which are breeding grounds for crime. Rather, the focus needs to be on solutions and implementation thereof, and our systems need to infuse the right values into human beings. Through correcting the issues we have with human beings, we can correct all the societal ills and stop so many people being in conflict with the law.

Mr Masondo said he would try to answer all the questions and that some of them would be dealt with by other JICS members present. On the issue of independence, that is no longer their prime concern. Rather, it is their budget and they often require a larger budget than is given to them. The underperformance generally of JICS is due to their lack of capacity and they work with a skeleton staff. It makes it difficult to reach targets so they need to increase their workforce. He noted that it would make sense for the JICS offices to be line with DCS offices so he would thus welcome the idea of having advice and community centres to supplement the deficit of offices in the interim. On maintenance and skills development, he said that when he joined DCS as a teacher, he saw that many inmates did indeed do maintenance and he saw no reason why that should not be the case again moving forward. He sympathises with DCS and he understands how some inmates behave but with that being said, they do not encourage assault. To deal with overcrowding, JICS has requested that judges and magistrates visit correctional centres to see the overcrowding so that they will be discouraged from postponing cases and reserving judgments.

The Chairperson asked why DCS is not employing the use of final year sociology, social work, psychology and law students to assist them in correctional centres so that it alleviates understaffing as well as allows the students to get experience.

Mr Professor Mohlaba, Mandatory Reports Manager, JICS, addressed the issue of assaults and torture. He said that when this happens, DCS does a report and JICS does an inquiry and if there is an assault, JICS recommends a disciplinary process. JICS then will inform the inmate that they should approach the South African Police Service (SAPS) to open a case. He said that as the inspectorate, they have not yet approached SAPS due to the fact that the Act is not clear on the recommended course of action. Deaths are most commonly due to natural causes and otherwise people die of human immunodeficiency virus (HIV) related diseases like tuberculosis and pneumonia. The problem is that when inmates arrive at centres, they are not properly checked and screened and do not disclose all their illnesses so they cannot determine whether inmates contract illnesses inside or outside the centres. When officers use force, it must be proportional to the incident and the use of force cannot be greater than the severity of the situation at hand. He said that sometimes on the spur of the moment, it is difficult to determine the severity of the situation.

The Chairperson noted that we should place social responsibility on the side of universities and require teachers and students to carry out their social responsibility work at correctional centres. In this way, students gain experience and develop a social conscience, and it corresponds to human resource needs within those centres.

Mr Masondo said that when he was working at DCS as human resource development (HRD) regional manager, the department would request that finishing students to do experiential learning at those centres. There were some who were voluntarily doing so but they need different disciplines such as social workers and psychologists. Tertiary institutions should make it a prerequisite for graduation that students complete a certain amount of experiential learning and that a letter is given to the student indicating they have done so.

The Chairperson noted that this letter requirement is not prescribed by any legislation.

Mr James Smalberger, DCS Chief Deputy Commissioner for Incarceration and Corrections, noted that DCS already has a Memorandum of Understanding with some universities to ensure that experiential learning but they still need a more extended and organised way of doing that. He noted that DCS was present to give the Committee a better understanding of the relationship between DCS and JICD as a collective, and to ensure the relationship is professional. Mr Smalberger said the department need to find ways to improve their operations within money allocated as budget constraints will always exist. On transferrals, he said most crimes are committed in urban centres and to achieve equilibrium, inmates need to be transferred to other centres and the Act is very clear on this. Inmates need to be transferred to a centre close to their home when they are nearing their release date to ease social integration.

Mr Smalberger said that the Pollsmoor from the middle of last year is a very different Pollsmoor today. In January 2016, Mr Smalberger visited Pollsmoor and observed a change, however not overnight but it showed commitment to changing the conditions there. On the question of bail for remand detainees, he said there are 44 000 remand detainees and there are about 15% who cannot make bail. The issue should be about releasing the poorest of the poor who cannot make bail. On assaults and torture, the law is clear in that it is a criminal offence and the policy says these cases need to be reported and investigated. The problem is, however, that many people do not open a case with SAPS or even lodge a complaint and this might be due to gang activity within centres. But, the issue remains that minimal force needs to used to control and contain the situation as those are the main objectives. There are several members of DCS, former officers, who are now serving prison sentences for overstepping the mark. On the outbreak of leptospirosis, Mr Smalberger said the Department of Health (DOH) was only informed afterwards. The issue is that they cannot make health testing for inmates compulsory but he was under the impression that the Department of Health was reviewing that policy.

Ms Britta Rotmann, CDC: Remand Detention, DCS, said that as per section 49(G), the responsibility of DCS is to refer those who are in their custody for over two years to the courts for a decision to be made about their future. The challenge is that they battle to get responses back from the courts. They only get about 30% of their decisions back.

Mr L Mpumlwana (ANC) commented on people not disclosing their health concerns. He can imagine if he had tuberculosis or some disease, he would declare it as it is very serious. On JICS independence, there is saying that goes: "He who pays the piper, calls the tune" so that actually affects the independence of JICS.

The Chairperson said it was interesting that DCS and JICS say that non-governmental organisations (NGOS) play a critical role but they do not call for an increase of NGO budgets, but only their own. He asked Mr Smalberger to organise a conference to discuss the societal matters at hand.

Ms Pilane-Majake asked how DCS dealt with women and the issues that came with that.

Mr Comewell Mushwana, ASD Finance: JICS, interjected and noted that with respect to budget, there was an improvement in last year. The amount increased to R65 million from R47 million so there should be an improvement in their operations and coverage.

Mr Masondo addressed Ms Pilane-Majake's question about women. He said that when he went to Johannesburg and Pretoria female centres, the women complained about the way they were treated and searched, so the problem is much very alive but they are trying to deal with it.

The Chairperson requested a special report on the treatment of women in correctional centres.

Mr Masondo said that Pollsmoor had been recently fumigated and this had much improved the conditions there.

The Chairperson thanked Mr Masondo and JICS for the presentation and handed over to Justice van der Westhuizen for commentary.

Justice Johann van der Westhuizen thanked the Chairperson for the generous introduction. He said the Inspecting Judge is in a fortunate position in that he can ask a question or two as the Inspecting Judge but no one can ask him anything. He said that judges do in fact visit correctional centres. It is not legislation but more a tradition that when judges are on circuit court, they visit correctional centres and that in the Constitutional Court, there is even a timetable to encourage judges to visit as to set an example to the judiciary. He said when they visit facilities, they often give warning so as to be courteous and not arrive unannounced and he is unsure how that affects the change in conditions in the centres. He visited Pollsmoor after the rat infestation and that it had originated from inmates throwing food outside a window. He said that he noted that cells meant for fourteen to twenty people were occupied by about ninety-six people and that there was often only one bathroom for all of those people.
 
Justice van der Westhuizen said that there is a clear line between assault and torture and that proportional yet minimal force should always be employed. With respect to the controversial Dudley Lee case (Lee v Minister of Correctional Services), where it was found that DCS was liable for the death of an inmate, Justice van der Westhuizen was the deciding vote and as a civil case, it was on a balance of probabilities. He said that the department has a set of rules but, in that case, they did not follow them but if they had, the death would have been prevented. He said that it all depends on evidence and whether or not the department followed the rules.

Justice van der Westhuizen said that one must think of linking these reports and the feedback into the bigger picture. One cannot say that until we address the bigger economic issues, we cannot address overcrowding because crime is a result of inequality, past discrimination and poverty. In court, Justice van der Westhuizen said he would often try to understand people's motivation for doing things and whether it was poverty or apartheid or inequality, people were unable to explain the true motivation of some heinous crimes. He said he is astounded with the immense progress humankind has made in terms of technology but we have made no progress socially and we still do not understand why people kill other people.

The Chairperson thanked Justice van der Westhuizen for his comments and noted that we do understand so much, except ourselves so we should move to create a conference to make this a societal issue.