National Council for Correctional Services: consideration of nominations; Magistrates Commission on suspended magistrates; Proclamations of Terrorist organisations

NCOP Security and Justice

18 May 2016
Chairperson: Mr D Ximbi (ANC Western Cape)
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Meeting Summary

The Department of Correctional Services firstly briefed the Committee, in the presence of the Deputy Minister of Justice and Correctional Services, on the eight shortlisted candidates for the National Council on Correctional Services (NCCS). The criteria for the shortlisting, the potential candidates and the qualifications and experience of the candidates were explained. The shortlisted candidates were Mr IL de Klerk; Ms TS Monyamane; Ms LUZ Rataemane; Adv KA Mahumani; Rev JP Clayton; Ms A Vilakazi; Dr V Chetty, and Mr M Nkopo. It was explained that there had been some concerns about the professional experience of some nominees, particularly in the category of expertise in clinical psychology, and that had meant that the Committee focused on those with diverse backgrounds. Three names had been dropped from the first shortlist, and replaced with others from the long list and the National Assembly Portfolio Committee on Justice and Constitutional Development had approved the list but had asked that another name be added. The DA asked for the rationale of the listing of Mr Nkopo, whom it felt may not be the best qualified; although he had studied internationally and had an interest in international correctional services, the DA felt that he lacked specific and relevant practical experience. The Deputy Minister explained the process, but the DA continued to object. During the discussions on how exactly the objection should be framed in the minutes, the DA walked out of the meeting. Remaining Members voted to approve the short list of nominees.

The Magistrates Commission presented an updated report on the progress of disciplinary cases against suspended magistrates. Some had been delayed by requests from the National Prosecuting Authority that the disciplinary proceedings be suspended pending the outcome of criminal charges. Members expressed dissatisfaction over the long time taken to conclude misconduct hearings against magistrates, especially since most magistrates did continue to receive salaries during their suspension. The Magistrates Commission explained that the delays mostly resulted from challenges instituted by the suspended magistrates in the High Court, over their suspensions, and it was not possible to deny them this right. The delicate balance between attempting to progress matters as fast as possible and ensuring that all constitutional rights were protected was explained. The Committee asked the Commission to try to progress matters as fast as possible.

A delegation from South African Police Services (SAPS) gave a presentation on national and international proclamations on terrorist organisations, criteria for lists of terrorists and organisations, and procedures for listing and delisting individuals and groups as terrorists. It was explained that the international community resolved to deny terrorists the access to money, weapons, and movement, and the lists of individuals and organisations were the listed by the UN Security Council, and were brought across into South Africa’s own domestic legislation. Some Committee members expressed concern over the definition of a terrorist and bullying by the USA. Others sought clarity over the procedure for delisting individuals and groups from the terrorist list.

Meeting report

Presentation of proposed candidates for the National Council for Correctional Services (NCCS): Department of Correctional Services briefing
The Chairperson welcomed Mr Thabang Makwetla, Deputy Minister of Justice and Correctional Services, who introduced the remainder of the delegation.

Mr Zach Modise, Commissioner, Department of Correctional Services, began by explaining the mandate and composition of the National Council for Correctional Services (NCCS), which is to advise the Minister in developing policy concerning the correctional system and sentencing process. He then explained the timeline of the process of nominating the latest members of the NCCS as follows:
21 February 2016: Advert was placed in the Sunday media calling for nominations. 15 CVs were received.
- 5 April 2016: Call for nominations was re-advertised with closing date of 15 April 2016. A total of 27 persons applied, making a total of 42, of which 10 were existing members
- 11 and 12 May 2016: Consultation process commenced.

Mr Zach Modise explained the criteria used to shortlist potential candidates, their qualifications, and their experience. The shortlisted candidates are Mr IL de Klerk; Ms TS Monyamane; Ms LUZ Rataemane; Adv KA Mahumani; Rev JP Clayton; Ms A Vilakazi; Dr V Chetty, and Mr M Nkopo.

Mr Makwetla explained that there were concerns over the professional experience of some of the nominees, especially in the category of clinical psychology. These concerns influenced the shortlisting committee to focus on candidates with diverse backgrounds. Accordingly, three names were dropped from the original shortlist and replaced with three names from the long list. The Portfolio Committee on Justice and Correctional Services had approved the list, but requested that an additional candidate be added.

Mr G Michalakis (DA Free State) questioned Mr Nkopo’s nomination. He asked whether there were not alternative nominees more qualified than Mr Nkopo, whose main qualification appeared to be his studies in Germany and his interest in international correction services. He was under the impression that Mr Nkopo lacked specific experience in community justice and correctional services and, though generally qualified to serve on the NCCS, may not be the best candidate for his nominated category.

Ms G Manolope (ANC, Northern Cape) sought clarification regarding the additional person sought to be nominated by the Commission.

Mr Makwetla explained that the additional candidate was requested because there was only one candidate in the category of having expertise in clinical psychology. The additional candidate will be sourced from the long list. He explained that Mr  Nkopo was shortlisted because he is the only one in his category with foreign experience. Also, his CV promised to bring a human rights approach to how the correctional services system would deal with foreign citizens. He also had a record of community activism. According to his CV, he had initiated interventions in his community to assist less privileged citizens to access justice.

Mr Michalakis agreed with Mr Makwetla that foreigners in the penal system require special attention. However, this was only one aspect of correctional services. He stated again that Mr Nkopo’s studies in Germany only concerned criminology and labour law. He had no expertise in correctional services. Knowing how the legal system of a foreign country works is not the same as knowing how the correctional services of that country works. There are many candidates who are experts in international correctional services.

Mr M Mhlanga (ANC, Mpumalanga) believed that, in view of the fact that Mr Nkopo is the only applicant with international experience, he should be retained while alternatives should be considered to see if they may be added to the list of nominees.

Mr Makwetla said he was not quite sure why M Michalakis was concerned about Mr Nkopo’s inclusion. He stated that Mr Nkopo’s nominated category does not require an expert in foreign correctional services. Whatever can assist the NCCS to execute its mandate should be done. Perhaps, the phrase ‘community justice’ should be defined to guide the nomination process. Personally, he understood the phrase as meaning candidates who understand justice from the perspective of the community. He concluded that Mr Michalakis’ arguments are not helpful.

Ms T Wana (ANC Eastern Cape) stated that in the absence of another candidate with international experience in criminal justice, Mr Nkopo’s nomination should be retained.

Ms Manolope said that her understanding of ‘community justice’ is the same as Mr Makwetla’s. The phrase is broad and should be broadly construed. She stated that the clarity provided by Mr Makwetla on the additional candidate is sufficient.

Mr Michalakis explained the basis of his objection to Mr Nkopo’s nomination. He restated that Mr Nkopo’s only qualification is his professed expertise in a particular field. However, there is no proof of this in his CV. There is a big difference between interest and expertise in a field. If an expert is needed on the NCCS in the field of community justice, then there may be other candidates more qualified.

Ms B Engelbrecht (DA, Gauteng) supported the views of Mr Michalakis.

Another Member commended the work done by the Ministry and supported all the nominations.

Mr Mhlanga supported all the nominations.

Mr Michalakis restated the DA’s objection to Mr Nkopo’s nomination.

Note: the following transpired at the end of the meeting:
Mr Michalakis requested to have the DA’s minority view on the NCCS nominations reflected in the Committee’s report. The Chairperson agreed, and the Secretary read the portion of the minutes concerning Mr Nkopo.

Mr Michalakis insisted on having the specifics of the DA’s objection included in the minutes.

Ms Manolope and Ms Wana sought clarification over what exactly is to be adopted by the Committee.

The Chairperson called for a vote on the NCCS nominations. Following disagreement over the framing of the Minutes, the DA members walked out.

The remaining Members proceeded to adopt the present list of nominations.

Provisionally Suspended Magistrates: Magistrates Commission briefing
The representatives from the Magistrates Commission explained disciplinary proceedings against some magistrates and their contestation or admission of the charges against them in the High Court (see attached document for full updates on all cases).

Mr Michalakis sought clarification over the progress of proceedings in the High Court concerning Ms Malahlela. He enquired when the case can be expected to be finalised.

The representatives replied that Ms Malahlela’s misconduct hearing was suspended after she filed an application at the High Court last year. The State Attorney was requested to place the matter on hold and consultation with Mrs Malahlela’s attorney is in progress.

Ms Engelbrecht sought clarity over progress in Magistrate PS Hole’s case.

Ms Manolope asked whether suspended magistrates receive salaries.

The delegation replied that suspended magistrates do receive salaries, unless specifically stated that they do not. Only Magistrate Morapi, who had also had his salary suspended, was not receiving a salary at present.

Ms Manolope expressed concern over the long duration of disciplinary proceedings, saying she thought it unreasonable for the state to be paying salaries for upwards of six years to suspended magistrates and prosecutors.

The delegation explained that the Commission was doing its best to conclude cases in time, and explained that every opportunity had to be given to the magistrates to comply with their requests.

Ms Manolope referred to the cases in which the disciplinary proceedings had been stayed pending the outcome of criminal prosecutions. She stated that she did not believe that any case should take more than around two years to be concluded. Some cases had been on hold or pending for over five years.

The Chairperson advised the Magistrates Commission to heed the advice on speedy conclusion of cases.

Mr Mhlanga suggested that those who were prosecuting the disciplinary cases for the Magistrates Commission should be given a stipulated period within which to conclude proceedings, given the financial cost to the state.

The representatives from the Commission explained that the Magistrates Commission was always trying to tackle delays in prosecution of the criminal charges, and then also the finalisation of the disciplinary cases, in line with statutory provisions on human rights, procedural bottlenecks of defence lawyers, and the busy schedules of magistrates who handled disciplinary hearings.

It was explained that the Commission had also been specifically requested by the National Prosecuting Authority (NPA) in the case of Mr Hole to suspend the disciplinary hearings against him for the moment. It was felt that proceeding with his misconduct charge could prejudice the state’s criminal charge against him. The Commission had written to the NPA asking it to expedite the trial of Magistrate Hole because it was frustrated with the long holding-in-abeyance of the misconduct charge.

Proclamations of Terrorist Organisations:  Department of Police briefing
Colonel Mathe, SAPS Legal and Policy Service Division, briefed the Committee on the national and international proclamations on terrorist organisations, the lists of terrorists and organisations, criteria for the lists, and procedures for listing and delisting individuals and groups as terrorists. She explained that the international community resolved to deny Al Qaeda, the Taliban, and related terrorist groups certain facilities, notably access to weapons and ability to travel freely, because these, if allowed, would also enable them to commit terrorist acts more easily. The United Nations Security Council (UNSC) has set up a sanctions committee, which must list individuals and entities belonging or linked to Al Qaeda and the Taliban. She explained the listings of terrorist groups and individuals identified by the UNSC, which were listed then also in South Africa in terms of section 25 of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act, No 33 of 2004.

She explained that when an individual is suspected by another nation of engaging in terrorist activity, he or she is given an opportunity to respond, if possible, before being recommended to the UNSC for listing. The member state must include supporting evidence on why the individual(s) should be listed. The evidence should also be sent to member states to evaluate whether it is cogent. Different forms are used for individuals and entities. The listed individual or entity must be informed. The lists are sent to Interpol. The first effect of listing is freezing of assets, followed by denial of access to weapons, then travel bans.

In order to delist, an individual or entity or member state must submit an application to the UNSC with appropriate reasons. If there is an objection from Committee Members, the delisting will not be effective. An individual could also be delisted in cases of verifiable death.

Mr Mhlanga sought clarity over the steps an individual would need to take to be delisted from the terrorist lists. He asked the chances of South Africa withdrawing from the UNSC arrangement on listing.

Colonel Mathe explained that there were a few South Africans listed as terrorist sympathisers. The USA had its own lists, which are different from the UN lists. South Africa is no longer in the UNSC, and had a turbulent relationship with the USA during its term.

It was explained that the delegation could not comment on South Africa’s withdrawal from the UN arrangements.

Ms Manolope expressed concern over the definition of “a terrorist”. She remarked that the Committee was not given a background of Al Qaeda and the Taliban’s motivations.

Colonel Mathe explained that the inter-departmental Committee on Counter terrorism meets monthly to peruse lists from the UNSC, and sometimes questions the rationale for the lists.

Mr Mhlanga remarked that the USA is a bully and South Africa should consider ways of operating independent of the UN arrangement.


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