Lawyers for Human Rights (LFH), the Wits Justice Project (WJP), the Civil Society Prison Reform Initiative (CSPRI), the South African National Institute for Crime Prevention and the Reintegration of Offenders (NICRO), and the Judicial Inspectorate for Correctional Services (JICS) made submissions to the Committee on the administration of correctional supervision and parole.
Lawyers for Human Rights said the most frequent complaint it receives is about the slow administration of the processing of parole for life offenders eligible for parole. They noted that DoJCD has failed to secure the long term employment of professional staff equipped to carry out psychological reports. It also noted that the The National Council for Correctional Services (NCCS) is experiencing a large backlog of cases. It recommended DoJCD re-evaluate the large size of the NCCS as well as the frequency with which it meets in an effort to ensure expediency. The rate at which offenders are being sentenced to longer sentences has increased drastically, as well as the number of offenders serving sentences of life imprisonment (3000% since 1994). It expressed its intention to file an application on behalf of Sonke Gender Justice challenging JICS’s legal framework. It recommended that the systemic delays in parole administration, which DoJCD has failed to address over the years, must be remedied.
Focussing on wrongful convictions, the Wits Justice Project pointed out that neither DoJCD nor the National Prosecuting Authority possess reliable figures on the number of wrongful convictions in South Africa. The practice of compelling parole candidates to show remorse – even when the law does not demand it – is disturbing for inmates who feel they were wrongfully convicted. It used a number of case studies to illustrate restorative justice for wrongfully convicted individuals. It was noted that they lacked legal support from lawyers Unblocking the parole system would require minimum mandatory sentencing reform. It concluded that the minimum mandatory sentencing legislation is a ‘dark and draconian’ law that needs to be abolished.
In the discussion, Members asked about obtaining the court records of wrongfully convicted inmates, exonerated individuals, measures to expedite the hiring of professionals for psychological services and social welfare, and problems with the parole system. They suggested a more scientific approach to the WJP’s arguments on wrongful convictions, given the difficulty of reaching a conclusion that a court’s decision amounts to wrongful conviction. In its response, WJP noted that not many lawyers are interested in assisting their exoneration work because it is pro bono. The Chairperson commented that complaints about delay in the parole system must be put in the context of institutional capacity.
The Civil Society Prison Reform Initiative argued that effective and efficient post-release support is essential to reducing the risk of re-offending. This aspect of the operations of Department of Correctional Services (DCS) has been severely neglected. It stated that DCS annual reports give little information on community corrections system. The most recently available data from 2007 indicate that there was a total of 52 718 sentenced releases. It noted that returning prisoners face personal challenges such as substance abuse, mental illness, lack of accommodation, HIV-positive/Aids status, unemployment and low educational qualifications, while their families and communities also face challenges of re-integration. Accordingly, the strategic approach of DCS in respect of offender re-entry and reintegration should clearly address these challenges. It recommended several measures for successful re-entry.
NICRO argued that South Africa has yet to come to grips with the link between crime and society. It defined restorative justice as undoing the harm done by a crime, which implies that incarceration is not always the best option to fix a system that is dysfunctional. Ex-inmates are marginalised and pushed further into crime through social ostracism. A restorative system of justice must be the lens though which crime should be perceived. This implies that a holistic approach should be undertaken for parole. NICRO requested the Committee to consider the underlying issue behind overcrowding and congested parole system. It argued that the penal system is punitive, frustrating, non-remedial, and unfriendly to inmates’ human dignity. It suggested that victims should partake in restorative justice programmes prior to parole hearings.
The Judicial Inspectorate for Correctional Services reported on its purpose and impact. It had conducted a total of 13 investigations, 81 inspections and dealt with 4 135 parole matters in 2015/16.
In the discussion, the Chairperson suggested moral regeneration programmes and communal involvement in restorative justice programmes through indigenous systems. Members asked about the difference between legal reform and legal transformation, imprisonment as a last resort, JICS recommendations to improve the parole system, and the DCS’s new parole tools for use by case management committees, parole boards and supervision committees. They suggested alternative non-custodial sentencing for offences carrying punishment of less than 24 months’ imprisonment, and non-disclosure of criminal records. They agreed that restorative justice should be a societal responsibility and that informal social control is the best way for crime prevention and reduction. The Chairperson stressed the need for traditional healthcare practitioners to be involved in restorative justice, given that 80% of South Africans believe in traditional spirituality. Another member expressed concern that there appears to be only one Independent Correctional Centre Visitor per 1000 inmates. JICS explained that it is looking to employ more ICCVs permanently or for longer contracts. It agreed about decentralising its functions.
The Chairperson noted that the Committee has not had the opportunity to fully discuss the administration of parole. The aim of the meeting is to obtain key stakeholder views on the administration of parole and how it may be improved. The meeting is in preparation for engagement with DoJCD and the National Council for Correctional Services (NCCS) in October-November 2016, to which all stakeholders will be invited.
Lawyers for Human Rights submission
Ms Clare Ballard, Head of Penal Reform Programme at LFH, summarised the aims and mission of LFH. She stated that the most frequent complaint LFH receives is about the slow administration of the processing of parole for life offenders eligible for parole. Large groups of inmates are affected. She noted that parole occurs under the NCCS and the Office of the Minister.
Categories of inmates
Inmates fall under one of the following categories:
Category 1: eligible for parole but waiting for the correctional centre’s Case Management Committee (CMC) to complete the compilation of a profile report;
Category 2: awaiting consideration from the Correctional Supervision and Parole Board;
Category 3: awaiting consideration from the National Council of Correctional Services(NCCS);
Category 4: awaiting consideration from the office of the Minister of Justice and Correctional Services;
Category 5: awaiting re-submission of report by the CMC to NCCS after initial parole refusal by NCCS.
Conclusions and recommendations
• An offender enjoys the right to be considered for parole. Accordingly, delays amount to unjustified rights violations of the right to just administrative action and liberty.
• For offenders experiencing delays at the CMC stage, it is clear that DoJCD is failing in its efforts to secure the long term employment of professional staff equipped to carry out psychological reports.
• For offenders experiencing delays at the NCCS stage, it appears that the NCCS is experiencing a large backlog of cases for consideration, exacerbated by the fact that it is comprised of a larger group of individuals that does not meet nearly as frequently as the parole boards do.
• DoJCD should re-evaluate NCCS composition as well as the frequency with which it meets in an effort to ensure expediency.
• Systemic delays in parole administration that DoJCD has failed to address over the years, must be remedied. Given the ongoing failure of DoJCD in this respect, the inescapable conclusion is that it does not take the rights of prisoners seriously.
• The rate at which offenders are being sentenced to longer sentences has increased drastically. The number of offenders serving sentences of life imprisonment has increased by more than 3000% since 1995 (see attached graphs).
• Given deficiencies in JICS’s legal framework, LFH notified the Committee that it will soon file an application on behalf of Sonke Gender Justice challenging the legislative establishment of JICS.
The Chairperson asked the LFH to reflect on whether it has taken into consideration the capacity of DoJCD regarding its failings on parole.
Wits Justice Project submission
Ms Simoniah Mashangoane, Programme Officer at the WJP, stated the objectives of the organisation. She pointed out that the WJP’s mission is carried out mostly through investigative journalism. Its main focus is on wrongful convictions. She observed that neither DoJCD nor the National Prosecuting Authority has reliable figures on the number of wrongful convictions in South Africa. She used a number of case studies to illustrate restorative justice for wrongfully convicted individuals.
The Chairperson commended the roles played by females in Lawyers for Human Rights and Wits Justice Project. He called on Members to respond to the submissions.
Mr J Selfe (DA) asked Lawyers for Human Rights to recommend measures for ‘unblocking the parole system.’
Ms Ballard replied that unblocking the system means whatever measures will make the system more efficient. On a macro level, the NCCS’s role could be re-evaluated. Currently, it is too big and too unwieldy to discharge its functions efficiently. In contrast, the Parole Board works swiftly and DoJCD can emulate their modus operandi. Unblocking the system would require minimum mandatory sentencing reform. The minimum mandatory sentencing legislation is a ‘dark and draconian’ law that needs to be abolished.
Ms G Breytenbach (DA) noted that the Chairperson should not have been surprised that young women are doing well. She asked Ms Ballard for figures on success rates of lengthy parole reviews.
Ms Ballard promised to provide the figures in a written reply.
Ms Breytenbach asked about records of wrongfully convicted people and exonerated individuals, to which Ms Mashangoane replied that WJP maintains a record of individuals who are wrongfully convicted.
Ms Breytenbach asked if the WJP has a record of the proceedings of the Sabelo Ngani case. She asked how the WJP concluded that Thuba Sithole was wrongfully convicted, given that WJP submission is a serious indictment of a whole chain of people.
Ms Carolyn Raphaely, senior journalist with the WJP, responded that exonerations do not receive publicity. The WJP has not been successful in obtaining records despite making several requests. Sadly, it lacks the human resources to conduct investigations in this regard. Wrongful convictions and exonerations take a long time. The WJP has only been successful in two cases. The only records it can keep are of people who write to it. Sabelo Ngani refuses to show remorse because he maintains his innocence. This is a conundrum in the law. He was compelled to file a notice of release against the Parole Board. The WJP submission is about the fallibility of the parole system.
Ms Breytenbach noted her unease at the framing of the WJP submission of wrongful conviction. She remarked that prosecutors would rather release 1000 guilty persons than convict one innocent individual.
The Chairperson advised the WJP to use the phrase ‘in our opinion.’
Ms M Mothapo (ANC) noted that LFH plays a critical role in the justice system. However, she expressed concern that their role is often reactive, rather than proactive. She noted its concern with the composition of the NCCS and asked for clarity. She asked LFH to suggest measures to expedite the hiring of professionals for psychological services and social welfare, since inadequate professionals have a negative impact on inmates’ rehabilitation.
Ms Mothapo asked WJP whether its area of focus is Gauteng or extends to rural areas. She asked it to explain the relationship between its restorative justice programme and that of DoJCD.
Ms C Pilane-Majake (ANC) welcomed the submissions. She asked LFH to articulate the problems with the parole system. She suggested that WJP adopt a more scientific approach to their arguments on wrongful convictions. This will enable remedial measures to be adopted.
Mr W Horn (DA) remarked that the WJP’s journalistic approach to wrongful convictions is unhelpful, even though it consults with lawyers in some cases. Unless people are exonerated by the courts, no one can really come to a conclusion that wrongful convictions pose a detriment to the parole system.
Ms Raphaely replied that the problem with parole is that the process takes too long. This is a human rights violation – a crisis. The NCCS is problematic in that it takes too long to act against the large number of parole candidates. She did not agree that Lawyers for Human Rights is reactive rather than proactive. Generally, though, lawyers are reactive to human rights problems. LFH has no problem per se with the composition of the Council but rather with its size. It only has a problem with the length that the parole process takes.
Ms Mashangoane replied that they are based in Johannesburg, but work beyond it. She stated that not many lawyers are interested in their work because it is pro bono. She conceded that the submission could have adopted a more scientific approach, but noted their challenge with legal human resources.
Ms Raphaely added that they may not be able to provide scientific evidence of wrongful convictions because of limited resources. However, the practice of compelling parole candidates to show remorse – even when the law does not demand it – is disturbing for inmates who feel they were wrongfully convicted. Although there is no scientific evidence, it should be noted that judges are fallible and measures should be put in place to review complaints of wrongful convictions.
The Chairperson noted that NGOs dependent on donor funding tend to be donor driven, rather than needs-driven. The work of Lawyers for Human Rights is very supportive of the justice system. Complaints about delays in the parole system must be put in the context of institutional capacity.
Civil Society Prison Reform Initiative (CSPRI) submission
Prof Lukas Muntingh, Head of CSPRI, submitted that parole and correctional supervision are positive attributes of the correctional system and should be maintained and expanded. Effective and efficient post-release support is essential to reducing the risk of re-offending. However, this is an aspect of DCS operations that has been severely neglected from a strategic as well as budgetary point of view.
Facts and figures
Prof Muntingh further explained that the 2014/15 report by the Auditor-General expressed substantive concerns over the validity of information in the Correctional Services Annual Report concerning the performance of the Incarceration and Rehabilitation Programmes; non-compliance with material legislation; accuracy of financial statements; strategic planning and performance management; internal auditing; failure to constitute an audit committee; control of irregular expenditure; revenue management; filling of vacancies; poor leadership of the accounting officer; and weak financial and performance management. The audit report noted that the lack of alignment between the Strategic Plan and Annual Report as well as the accuracy of information are of grave concern.
Prof Muntingh stated that DCS annual reports give little information on the community corrections system. The most recently available data from 2007 indicates that there was a total of 52 718 sentenced releases or slightly more than 4 300 per month. Of this group, 70.1% served a sentence of less than 24 months and the decision to release them was made by the Head of Centre and not the Correctional Supervision and Parole Board (CSPB). The 2014/15 Annual Report indicates that over 41 000 cases went to the CSPBs; 98% of parolees and probationers had no parole or supervision violations; 604 persons were electronically monitored; 81 persons were placed in halfway houses, while 2 212 victims and 23 943 offenders participated in restorative justice programmes.
Challenges of inmates’ re-entry into society
Prof Muntingh stated that returning prisoners face personal challenges such as substance abuse, mental illness, lack of accommodation, being HIV-positive or having Aids, unemployment and low educational qualifications. Families and communities to which inmates return also face challenges of re-integration. The strategic approach of DCS in respect of offender re-entry and reintegration should therefore clearly address these challenges.
CSPRI recommends the following in respect of post-release support:
1. Successful re-entry will be improved if a comprehensive case management approach is followed that sees active involvement of the offender/parolee, officials, family members and community structures. Such an approach must be based on continuity in planning and monitoring from well before release until completion of parole/correctional supervision. In qualifying cases, such a release plan needs to be a natural product of the sentence plan.
2. The case management plan must identify and address specific risk factors in the individual’s life that may place him at risk of re-offending.
3. The DCS should develop a detailed database of community-based resources that may be of assistance to all ex-prisoners. Prisoners who are about to be released should be properly briefed on the nature and locality of such services in their area of residence.
4. Families of prisoners need to be prepared for release and made part of the re-entry process.
5. A more strategic and active approach needs to be implemented in respect of securing employment for released prisoners. This would address the following: ensuring that prisoners complete primary and secondary education as far as possible; training prisoners in marketable skills; linking (ex-) prisoners with potential employers; training prisoners in searching for employment; linking ex-prisoners with community-based resources that may assist them in finding employment; providing parolees and probationers with active support in securing employment, and assisting parolees and probationers with transport in their employment seeking efforts.
6. Mental health assessments should be done during imprisonment and specifically prior to release. Prisoners should be made aware of symptoms of mental health problems and informed of available resources that are able to offer assistance.
7. Substance abuse treatment must start prior to release and link individuals to community-based resources on an individual basis.
8. Prisoners who are about to be released must undergo a thorough medical examination and receive the necessary services prior to release or be linked with appropriate public health care services closest to them.
9. Prior to release, it should be ensured that prisoners have an identity document. It should similarly be ensured that the prisoner and his family have access to social security benefits if they qualify.
10. Parolees and probationers need to be properly educated about their community corrections conditions as well as problem-solving in this regard.
11. A review of community corrections monitoring is required to investigate measures to remove hurdles to securing employment.
12. Parolees and probationers should be compelled to participate in regular community-based support and development activities with a view to develop pro-social networks and access assistance.
13. It is recommended that the current community corrections system be subjected to an independent evaluation to accurately assess performance with particular reference to reducing the risk of reoffending.
14. DCS should also present more detailed information on the functioning of the community corrections system and a number of the most obvious gaps have been identified in this submission.
National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) submission
Ms Vanessa Padayachee noted that NICRO has been the greatest advocate of restorative justice over the years. NICRO feels that South Africa has not gotten its priorities right with respect to the link between crime and society. She defined restorative justice as undoing the harm done by a crime. Incarceration is thus not always the best option. We cannot continue to fix a system that is dysfunctional. Putting people in prison is not getting the desired effect. Ex-inmates are marginalised and pushed further into crime through social ostracism. A restorative system of justice must be the lens though which crime should be perceived. When children are dying in gang-related violence, it is a societal crisis. A holistic approach should be undertaken to the issue of parole. It is unclear if the Parole Board is applying the correct law in the parole process. Release on parole is not a right. However, an offender has a legitimate expectation of release on parole on good behaviour. NICRO asks the Committee to consider the underlying issue behind overcrowding and the congested parole system. It should monitor DoJCD and consider alternative sentencing than putting people in prison. Imprisonment should be the last resort for all offences. Restorative justice is a powerful tool for improving lives when used correctly. It starts with the individual coming to terms with the effects of crime on victims and the society. When used rightly, it should aid victim empathy on the part of offenders. The system is sadly punitive, causing frustration and hopelessness. Also, inmates are treated harshly and their human dignity is often abused. Ex-convicts suffer economically because employers usually factor in their criminal records. How are they expected to survive? Sometimes, victims are left uncounselled before entering the parole process. NICRO suggests that victims should partake in restorative justice programmes.
The Chairperson asked NICRO if it has looked at moral regeneration programmes at the municipal level. The DoJCD cannot be expected to do this on its own. In his view, traditional communities have restorative justice embedded in their indigenous systems. Has NICRO looked at these systems for inspiration and collaboration? Also, what is the difference between legal reform and legal transformation in the context of the submissions made today? He suggested a conference of all justice stakeholders to present a communiqué to government.
Mr Selfe sought clarity on imprisonment as a last resort. He noted that it is sensible to reduce incarceration because people emerge from prison are more criminal minded than when they go in. He suggested that judges should show compelling reasons why sentences of less than 24 months should be given rather than alternative sentencing. On criminal records, legislation needs to ensure that criminal records are not disclosed in appropriate cases.
Prof Muntingh supported the suggestion of alternative sentencing for offences leading to less than 24 months imprisonment as it will help in prison decongestion. This will follow the Zimbabwean model. The Law Reform Commission is looking at new legislation on criminal record expungement.
Ms Padayachee noted that local communities have programmes on restorative justice. However, these programmes are too fragmented to be of help to the courts. Restorative justice should not be left to DoJCD alone. It is a societal responsibility, especially civil society organisations. Informal social control is the best way for crime prevention and reduction. This responsibility largely falls on communities.
The Chairperson supported the suggestion of social responsibility for restorative justice. A programme of action is clearly needed for this as well as Parliament’s oversight function.
Judicial Inspectorate for Correctional Services (JICS) submission
Mr Michael Masondo, JICS Acting CEO, stated that his submission seeks to report on JICS’s purpose and impact. JICS engages with stakeholders and makes many contributions about parole. Its engagement is mainly in job provision for ex-inmates, engaging with foreign consulates; transfer of state patients; children in conflict with the law; workshops on torture and human rights abuse; training; finalisation of SAPS cases; referral of cases to Legal Aid South Africa; campaign against gangsterism; educational campaigns, and plea bargaining. A total 13 investigations and 81 inspections were conducted by JICS during the 2015/16 year. For 2015, the Inspectorate dealt with 4 135 parole matters. JICS has achieved the following:
Additional 42 posts received; Ring-fencing of budget for JICS; Formal opening of regional offices; Proposed amendments of the Correctional Services Act to give JICS more independence; Proposals for a new organisational form for JICS; and creation of a corporate identity for JICS.
The Chairperson wondered why JCS wants to develop a curriculum and run workshops instead of leaving it to others well placed to do so.
Mr Horn asked for clarity on JICS recommendations to improve the parole system.
Ms Shariefa Wesson, Attorney at JICS, replied that the DCS has indeed tested new tools for use by CMCs, CSPBs and supervision committees.
Mr L Mpumlwana (ANC) sought elaboration on these new tools.
Ms Wesson replied that the tools seek to address non-reliance on basic operational requirements and a whole host of administrative challenges. These tools have training for DCS staff. They also aim at bridging the relationship between the various bodies involved in the parole process.
Mr Mpumlwana asked if the DCS has a problem with personnel management.
Ms Wesson replied that the DCS faces challenges of shortage of healthcare professionals such as psychologists.
The Chairperson asked whether traditional healthcare practitioners are carried along. He noted that 80% of South Africans believe in traditional spirituality.
He was told that DSC does not carry traditional healthcare practitioners along.
Ms Mothapo noted that there appears to be only one Independent Correctional Centre Visitor (ICCV) per 1000 inmates. She asked how JICS copes with the huge numbers of inmates in need of ICCVs. She sought clarity on parole revocation tools.
Mr Masondo replied that JICS is looking into the service terms of ICCVs in order to employ them permanently or for longer contracts.
Mr Mpumlwana sought clarity on the coverage areas of South Africa’s regions.
Mr Masondo replied that JICS is constrained by funds and is dependent on DoJCD for creating new positions/outreaches.
The Chairperson suggested that JICS could decentralise its functions, to which Mr Masondo agreed.
Mr Mpumlwana suggested that JICS could make a strong case for increased funding and independence to Parliament.
The Chairperson suggested that a team needs to be put in place for a January 2017 conference in order to help in building a new South Africa and save the country’s young people.
The Chairperson thanked everyone and closed the meeting.