Stakeholders involved with prison reform were consulted on their views about the Judicial Inspectorate for Correctional Services as an oversight mechanism and its impact. They expressed their frustration over the absence of tangible legislative reform to remedy weaknesses in JICS institutional setup. These weaknesses are JICS’s absence of investigative and enforcement powers, lack of administrative and financial independence from the Department of Correctional Services (DCS), the need for a separate legal personality for JICS, increased public awareness of its mandate and activities, and improved terms of employment for its staff. They suggested that JICS’s investigative powers need to be strengthened to a position similar to that of the SAHRC. Confirming many of these concerns, JICS delegation identified JICS’s challenges as inadequate funding, incorrect interpretation of legislation and case law by inmates, administrative incompetence, wrong interpretation of legislation, and submission of reports that do not comply with basic requirements. As an example of its budgetary and operational constraints, it revealed that it takes measures to ring-fence its budget, fill non-existent vacancies, and ameliorate the hardship of staff members on temporary contracts.
Judge Johan Westhuizen, Inspecting Judge of Correctional Services, spoke about the frustrations of JICS staff arising from perceived unresponsiveness from the DCS, the non-binding nature of JICS recommendations, temporary contracts, absence of an inspecting judge for a long period, unsuitable office space, and need for legislative amendments.
In discussion, Members noted the need to import the language of transformation into the reform proposals for JICS. They noted the complaints that the DCS is not responsive enough to civil society queries for information and LHR’s threat to sue the Department. They expressed concern that numerous litigation constitutes a financial obstacle against the Department and advised the LHR to use the Committee to constructively engage with the Minister. They explored the option of reforming JICS through a Committee Bill and resolved to hold a stakeholder workshop in January 2017. Members agreed with the civil society organisations that a sense of urgency needs to be injected into solving the challenges facing JICS. They stressed the need to understand the underlying issues behind high crime rate and human rights abuses in South Africa, noting with unease the disclosure by the SAHRC that a sister chapter 9 institution challenges its findings on human rights violations. They welcomed Judge Westhuizen’s comments on his experiences in JICS since his appointment in April 2016.
The Chairperson noted the presence of Judge Johann van Westhuizen, co-founder of Lawyers for Human Rights. Stakeholders would make inputs on the purpose and impact of the Judicial Inspectorate for Correctional Services. The delegations in attendance were:
• Lawyers for Human Rights (LFH)
• Civil Society Prison Reform Initiative (CSPRI)
• Wits Justice Project (WJP)
• National Institute for Crime Prevention and the Reintegration of Offenders (NICRO)
• Sonke Gender Justice (SGJ)
• South African Human Rights Commission (SAHRC)
• Judicial Inspectorate for Correctional Services (JICS)
The Department of Correctional Services was in attendance for observation only.
Lawyers for Human Rights (LFH) submission
Ms Clare Ballard, Head of Penal Reform Programme at LFH, restated that substantial deliberations had been made on the purpose and impact of the Judicial Inspectorate for Correctional Services. However, there has been no tangible legislative reform. LFH’s submission is to notify Parliament of its imminent intention to file an application on behalf of Sonke Gender Justice challenging JICS’s legal framework on the ground that it is not constitutional.
The notion of independent oversight is a key feature of democracy requiring that the exercise of executive power be checked by an independent body. JICS is not an independent body. The courts have explained what independence means. Oversight measures must be clear and reasonable. The state has failed to take measures to ensure that the Inspectorate is independent. In terms of section 95 of the Act, JICS is totally dependent on the Department for its financial operations. LFH’s intention to file an action is borne from frustration. LFH has brought international best practice on penal reform to Parliament’s attention.
Civil Society Prison Reform Initiative (CSPRI) submission
Prof Lukas Muntingh, CSPRI Head, stated that the Constitution provides for oversight over the police, but not over prison services. This is a defect that law reform can correct. The Jali Commission was unhappy about the independence and operation of the Inspectorate. There has been sustained pressure on the operation of the Inspectorate since then. The issue is a culture of impunity in South Africa. Serious violations of rights are rarely investigated and prosecuted. CSPRI urged the Committee to prioritise the reform of JICS so that it may be effective and independent enough to handle human rights violations.
Ms Gwen Dereymaeker, CSPRI Researcher, identified two aspects: lack of financial independence and lack of administrative independence. Mr Masondo confirmed yesterday that JICS suffers from financial lack of independence. Independence must not only be effective, it must be perceived to be independent. Prisoners do not perceive the Inspectorate as independent from the DCS. When the Committee adopts legislation to amend the powers of JICS, its independence must be strengthened. At the moment, the mandate and powers of JICS is mainly to inspect, report back, and handle complaints. The Act is almost silent on JICS investigative powers. The question is: does JICS need an investigative mandate? As an example, JICS needs investigative powers to investigate numerous complaints of assaults, most of which are currently handled internally. Independent Correctional Centre Visitors (ICCVs) receive about 450 000 complaints based on 2014 statistics, of which assaults by officials on inmates account for 4 200, of which only 109 reached the Office of the Inspecting Judge. Of this number, only nine were investigated, all of which resulted in non-prosecution of the impugned officials. In effect, about 4100 complaints of the assaults were handled internally, and it is reasonable to assume that this huge number of complaints cannot be entirely baseless. This is a scandalous situation. The reality is that the Inspecting Judge investigates a negligible proportion of assault complaints brought by inmates. The police do not go into prisons to take statements. Even when investigating officers go in, they go in too late when evidence has been tampered with. If violence is to be addressed, inmate complaints must be investigated speedily.
National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) submission
Ms Vanessa Padayachee stated that NICRO has been part of discussions on the mandate and independence of JICS since 2011. There is consensus about financial and operational independence of JICS. Yet, no legislative action has been taken. Independence in oversight in prisons is very important as it is not easy to see what goes on in prisons. International standards show that the most effective mechanism is operational and financial independence. This is not the case with JICS at the moment. Unless this is addressed, we cannot see an effective Inspectorate. NICRO supports CSPRI about the need for an investigative mandate. In NICRO’s previous submission, it recommended best practice from foreign jurisdictions. A key issue is standards and performance assessment. A standard for monitoring prisons is needed. How is this to be measured and monitored? How is Prison A performing in relation to Prison B? The Committee will benefit from articulated standards of measurement.
Ms Padayachee submitted that JICS requires separate legislation on financial autonomy and a separate legal personality from the DCS. Prisoners do not see ICCVs as independent. In terms of ICCVs, it is important for communities to be involved. The ICCV structure needs to be strengthened. Issues such as medical care and gangs should be examined.
Ms Padayachee requested more cooperation between stakeholders and JICS. This is because many organisations are involved in prison human rights. An example is the South African Human Rights Commission. The JICS Annual Reports are important, but are not enough.
Ms Padayachee submitted that JICS be given more powers to enforce their recommendations, have more financial and administrative independence. Child and Youth care centres need to be independently monitored, even though this does not directly relate to JICS.
Finally, there does not seem to be enough media coverage of JICS. NICRO expressed the hope that something fruitful will come out of these deliberations.
The Chairperson remarked that the language of transformation should be imputed into the reform proposals for JICS. This is because racial composition is still an important issue with civil society groups. He cited the example of Judge Westhuizen’s delegation as a model of transformation. Individuals should drive change in their organisations. Delegations should strive to carry students and interns along in order to build a new South Africa.
Mr J Selfe (DA) stated that reforming JICS has dragged on because one committee deals with both justice and correctional services. A separate Committee is needed to deal with correctional services. He asked whether there should be a specialised committee to deal with JICS or whether JICS should be left for the Human Rights Commission to handle.
Mr Selfe noted the complaint that the DCS is not responsive enough. He agreed that generally, DCS is unresponsive. Until there is a consequence in law for this unresponsiveness, civil society monitoring of its operational effectiveness is not likely to improve.
The Chairperson remarked that there is a real situation of transformation that needs to be addressed.
Mr S Swart (ACDP) stated that the debate about reform and transformation can be undertaken later. He expressed concern over Ms Ballard’s indication of litigation over their frustration at engaging with the Minister. One of the biggest financial obstacles against the Department is constant litigation. We should avoid as much as possible constant litigation. It is shocking that none of the Jali Commission’s recommendations were followed. Can the Committee not reform JICS through a Committee Bill? There is precedent for this and a clear model for the Committee to follow.
The Chairperson stated that in the 1980s, human rights organisations used to have test cases in order to attract more foreign donors. This trend should be discontinued. JICS clearly needs more money and numerous litigation cases against the Department need to be avoided. Also, failing to secure appointments with the Minister can be reported to the Committee for it to intervene. Constructive engagement is needed for the overall interest of inmates and the nation. He approved Mr Swart’s suggestion of a Committee Bill.
Ms M Mothapo (ANC) aligned herself with Mr Swart’s position that litigation against the Department is not constructive. LFH should write to the Committee to intervene. Litigation is wasteful.
Ms Mothapo thanked NICRO for its thought-provoking submission. She remarked that most presenters made reference to international instruments rather than SADC or African legal frameworks. South Africa has ratified many AU instruments, and it therefore makes sense to start with the continent. She noted the submissions made on the need for JICS independence.
The Chairperson remarked that in 1961, the International Commission of Jurists adopted the Rule of Law Principles in the African context. African leaders have always been mindful of applying proper context to international instruments. This requires attention to African cultural realities.
Ms C Pilane-Majake (ANC) supported the call for transformation consciousness because of South Africa’s history. She expressed a desire to see more women in delegation to parliament. She pointed out that belief in South Africa’s democratic ideals must be evident in debates. Inmates are not supposed to be violated. Where violations do occur, they must be swiftly investigated. The Minister’s non-responsiveness requires intervention from the Committee. However, going to court is not an answer to this problem. Civil society can come to Parliament to compel the Minister to be responsive. It would be unfortunate if civil society colludes in their presentation. They also require some independence and creativity in their implementation and monitoring activities. As a watchdog, civil society need not rely on the Minister’s engagement with it alone.
The Chairperson assured Ms Ballard that though she has the right to approach the courts, there is a need to exhaust internal remedies, which includes approaching the Committee about the Minister’s non-responsiveness. This will avoid unnecessary costs.
The Chairperson also asked them to place before the Committee documentation of the Minister’s unresponsiveness. He called on stakeholders to respond to Members.
Responding to Mr Selfe, Prof Muntingh stated that a JICS review should draw a distinction between its investigative function and monitoring function. JICS investigative powers need to be strengthened to a position similar to that of the SAHRC. He argued for keeping JICS a separate and distinct institution. Over time, institutions like JICS develop expertise in the problems they are meant to solve. If JICS is subsumed into a larger institution such as the South African Human Rights Commission, there is a real fear that it could undo all the good work done and prove counter-productive.
Further, the relationship between the National Prosecuting Authority (NPA) and JICS is important. He denied collusion between civil society organisations, noting that civil society has been deliberating on JICS issue for a long time, which has led to consensus on the position on JICS’s independence, mandate, and functions.
The Chairperson stated that a situation in which a judge is appointed to head a commission on JICS and then ends up begging for funds should be avoided.
Ms Ballard commented on the importance of drawing from African instruments rather than international standards. She explained that African standards are not being met, let alone international standards. Regarding its planned litigation, the business of legislative reform rests with Parliament.
The Chairperson stated that the Committee is not criticising LFH, but merely suggesting the services of the Committee for engaging the Minister.
Ms Ballard added that there is a recommendation by the African Commission on prison reform.
The Chairperson suggested the resort to manuals produced by the Open Society Foundation, since they come from an empirical context.
Ms Padayachee thanked the Committee for its suggestions. She remarked that Africa has a long way to go in prison reform. Africa models were taken into consideration during the deliberations on JICS, notably those of Malawi and Ghana.
The Chairperson noted that the blame partly lies with Parliament too. When Parliament goes abroad to study, it goes to Europe. This is wrong because Africa should be the starting point of borrowing from foreign jurisdictions.
Sonke Gender Justice (SGJ) submission
Ms Ariane Nevin, National Prisons Specialist: Policy and Advocacy Unit, stated that oversight aims to open prisons to scrutiny and shed light on human rights violations in prisons. JICS therefore has a vital role to play and can only do this effectively if the issues highlighted today are addressed.
SGJ’s recommendations are two-fold:
• JICS functions and powers
JICS does not appear to have proper investigative powers. The word ‘investigator’ is rarely used in the Act. JICS is not empowered to conduct investigations into issues such as overcrowding and corrupt practices by officials. How is JICS to be held accountable for its mandate?
• JICS’ independence
JICS independence can be broken into four aspects:
Financial independence – there is undue reliance on the DCS
Associational independence – JICS may relate with other bodies in order to attract sympathy
Employment security – most staff of JICS are employed on temporary contracts.
SGJ recommends that:
JICS powers be clearly defined.
JICS need to be completely and structurally independent. It should have a separate budget.
The Inspecting Judge should be able to act as a complaint mechanism.
Regarding the planned litigation by LFH, SGJ agrees that constructive engagement is necessary. However, engagements with the Committee have proved unhelpful over the last five years. In 2011, SGJ held two meetings in which JICS independence was discussed. Nine meetings were held in 2012, five in 2013, seven in 2014, while five meetings took place in 2015. SGJ therefore urges the Committee to commence with a Committee Bill as it suggested.
Just Detention International submission
Ms Sasha Gear, Programme Director, stated that JICS capacity is severely limited in its current structure. It expressed indebtedness to work done by bodies such as CSPRI. JDI recommends:
• Independence of JICS from the DCS both administratively and financially. JICS should have its own budget.
• The process of appointments should be independent.
• JICS’s mandate especially with respect to investigations, should be strengthened and made clear. It should include the power to investigate, monitor, and enforce. The DSC should be compelled to account for JICS’s referrals of complaints.
• Cooperation between JICS and other bodies should be entrenched in the law.
• Measures are needed to ensure that the key challenges to ICCV efficiency are removed. Many ICCVs pursue a career with the DCS after a short career with JICS. They have limited contact with the inspecting judges. They receive very limited training to prepare them for receiving complaints. They clearly require greater job security; direct lines of communication with JICS, and ongoing, sustained, and specialised training. They should also be accompanied by or have access to teams of professionals such as lawyers, medicare practitioners, and former inmates.
• There should be greater awareness of JICS among inmates and general society. JICS could promote this in ways other than their Annual Reports. They should emphasis inmates’ freedom to lay complaints by themselves or via their families.
In conclusion, the previous Committee’s promise of a workshop never materialised. The present Committee should hold this workshop.
The Chairperson remarked that such delegations are an important resource to Parliament because of their varied human resource capacities.
Mr M Maila (ANC) noted that most arguments centre on the need to revise legislation in order to give JICS financial and operational independence and give it an investigative mandate. However, there are other suggestions to improve JICS efficiency. Suggestions need to be discussed by the Committee rather than taken as conclusions. For example, the suggestion for a workshop needs to go with a timeline. It is bad that only nine out of over 3 000 complaints to JICS were investigated.
On transformation, Mr Maila stated the need for radicalisation. Everyone should pursue radical transformation, not just for JICS but also for the country.
Ms Pilane-Majake thanked Sonke Gender Justice. However, she expressed disappointment that it did not present the situation for women nor issues of gender generally in its JICS advocacy. There must be many of these issues, especially sexual abuse in prisons. The approach to violence in prisons should be holistic, because it extends to intra-inmate violence. As watchdogs, what role does civil societies play in prison inspections?
Mr Swart stated that the challenge is that Parliament is two and half years into its tenure without improvement in the situation of JICS. The issues have remained the same over the years. Civil society plays a crucial function in issues related to JICS. A sense of urgency needs to be injected into the challenges facing JICS, as well as legislative reform.
The Chairperson stated that Parliament has not been good with implementation of recommendations. The problem is that the movement for moral regeneration is not being supported to tackle the root cause of crime and avoid wasteful spending and huge numbers of incarcerations. Communities are complaining that the government looks after prisoners more than it looks after victims of crimes. Thus, the legal system may be delegitimised in the eyes of communities. Hopefully, when the Committee holds the January workshop, these issues will be addressed. In the meantime, nothing stops the Committee from proceeding with a Committee Bill. JICS should also take responsibility and improve its efficiency.
South African Human Rights Commission (SAHRC) submission
Adv Lawrence Mushwana, SAHRC chairperson, called on a senior researcher to present.
Ms Fadlah Adams, SAHRC Senior Researcher: Parliamentary and International Affairs Unit, noted that the SAHRC has been part of deliberations on JICS since 2013. SAHRC has done considerable work on detention conditions of inmates. It has a strong working relationship with JICS, though there is room for improvement. The SAHRC has an A rating, meaning it is in compliance with the Paris Principles.
Ms Adams made a comparative analysis of the SAHRC and JICS, noting that whereas JICS does not have wide ranging investigative powers or powers of enforcement, the SAHRC has wide ranging powers of search, seizure, subpoena and choice of mode of dispute resolution. The SAHRC has previously raised concerns on the mandate and enforcement powers of JICS. The Constitution clearly provides that the SAHRC is answerable to the Constitution through Parliament, unlike JICS, which is answerable to the National Minister of the DCS and to Parliament. Perhaps, JICS can be made to be answerable only to Parliament. In terms of reporting, the SAHRC only reports to Parliament, which is not the case with JICS. Ms Adams also noted differences in the two bodies’ complaints handling procedures.
The SAHRC has generally referred all matters relating to correctional matters to JICS. It reiterates that financial constraints limit the SAHRC from performing its mandate in correctional matters. However, it has participated in prison inspections. It suggests a clearer line between it and JICS in order to ensure that there are updates on the progress of referrals it makes to JICS. In JICS’s early years, there was a suggestion of an electronic monitoring system between it and the SAHRC; but this was not implemented.
Recommendations to strengthen the impact of JICS
In addition to previous submissions by other civil society groups, the SAHRC suggests:
• Review of the enabling legislation for JICS to ensure that the appointment of the Judge should be via recommendations from the Judicial Services Commission rather than a unilateral decision by the President
• On JICS independence, its budget should be separate from the DCS and it should have its own legal personality.
• JICS should have greater investigative and enforcement powers, having previously reported on a lack of responsiveness from DCS about complaints or request for information.
• JICS should be equipped with powers of subpoena, and search and seizure similar to that of the SAHRC.
• Review of the existing framework and processes, plus perceptions of JICS by public, DCS and inmates.
• Benchmarking and mapping of needs against existing resources including range of work, reach of work and impact of work
• Full consideration of authority, powers and infrastructure necessary to support independence
• JICS should have greater recourse to Parliament to report instances where the DCS fails to comply with Inspectorate requests. Parliament should exercise its oversight on the Department.
• JICS recommendations should be made enforceable and provisions should allow for public dissemination of certain findings; own accord reporting in addition to mandatory reporting; compulsory education campaigns, and reports to the SAHRC.
• The SAHRC should be regularly requested to accompany JICS when it investigates contentious complaints, particularly those referred to it by the SAHRC.
• JICS should have power to institute legal proceedings in its own name and a clear mandate to refer cases to SAPS or the NPA in cases of criminal conduct by DCS officials.
Mr Mushwana added that section 11 deals with methods of equality, especially in deportation centres. The SAHRC has a responsibility to visit detention centres more frequently. Sadly, it lacks the financial capacity to do this. It has already submitted a budget to the Department for its proposed monitoring activities in prisons.
The Chairperson disclosed that he read a book, which suggests that less than 40% of South Africans have read the Constitution. The setup of the Constitution demands education on the Bill of Rights. There is a public perception that freedom means taking the law into one’s hands and destroying property. Is this the result of a failure to educate the public about the nature of human rights? Presently, students are damaging property. There could be a civil war among students as a result of their division over protests.
The Chairperson stated that monitoring alone by the SAHRC may not be enough to realise its mandate. He noted that the SAHRC investigated xenophobia and racism. Should not the national curricula include a Bill of Rights education to enhance understandings of, and the legitimacy of the Constitution? He recalled that the legal sector failed to support the Paralegals Project. The people need to understand the concept of human rights in a constitutional democracy. The SAHRC should pay more attention to important issues rather than issues such as ukwethula. The people need to be educated so that they understand the essence of criminal sanctions and not feel like objects.
Mr Mushwana stated that the SAHRC recently investigated a church and made a finding against corporal punishment. It was queried by another chapter 9 institution. Similarly, the Commission for Gender Equality conducted an investigation against virginity testing and got a complaint from a sister chapter 9 institution. These illustrate that the people are aware of the Constitution more than they are given credit for. The SAHRC has partnered with organisations that work on constitutional awareness. However, the SAHRC is asking itself the same questions as The Chairperson regarding the underlying issues of crimes. The SAHRC is working on strategies in this regard. For example, when people kill LGBT persons, what could be responsible?
The Chairperson remarked that the Tsonga and Venda people lived for many years in peace. Why should they now have conflicts in a democratic society? There must be underlying issues that need to be examined.
Mr Maila noted that though there seems to be similarities between the SAHRC’s submission and others, it suggests that there could be partnership between the SAHRC and JICS so long as financial capacitation is ensured. The Committee needs to reflect on these issues in order to articulate solutions for the benefit of the country.
Ms Pilane-Majake supported Mr Maila’s suggestion of partnership between the SAHRC and JICS. The issue of capacity needs to be address. Similarly, the issue of public perceptions need to be addressed. The SAHRC has suggested an MOU to create a relationship with JICS.
Ms Pilane-Majake sought clarity on appointment of inspecting judges in line with the appointment of chapter 9 institutions. Regarding human rights awareness, the people have an increased voice in awareness of rights. this is a sign of liberation. The numerous demands out there are based on rights. However, these demands must be balanced against resources in order not to create chaos.
The Chairperson noted that it is disturbing that a chapter 9 institution can challenge another for doing its work. This suggests that even these institutions have differing understandings of human rights. there are clearly deeper underlying issues.
Mr Horn sought clarity in the contemplated electronic link between inspecting judges and the SAHRC
Judicial Inspectorate for Correctional Services submission
The Acting CEO of JICS, Mr Mike Masondo, pointed out that JICS is in partnership with the SAHRC over inspections. Indeed, it has conducted some inspections with them. With the assistance of the current judge, JICS has managed to secure 42 positions and is in the process of filling its allocated 24 positions.
The appointment conditions of ICCVs differ from permanent staff. They are appointed as independent contractors for a three-year period. Accordingly, ICCVs sometimes work double jobs to complement their salaries. Out of 43 permanent positions, two inspectors are doubling up as investigators. Of four inspectors, three are on contract and only one is permanent.
Regarding the 2016-2017 budget, JICS has spoken to Treasury for ring-fencing its budget with the assistance of the current judge. The total budget is 65.3 million. 17 million has been spent so far.
Mr Masondo explained that the main allegations in 2015 centre on assaults on both inmates and officials. There are also alleged homicides by officials, overcrowding, poor treatment of inmates, poor nutrition, and transfers.
On mandatory reporting, the DCS is supposed to report to JICS on issues such as segregation, overcrowding, and use of force.
ICCVs engage with stakeholders to assist with complaints from foreign nationals, youths in conflict with the law, human rights violations such as torture, gangs, plea bargaining, etc.
Mr Masondo explained JICS’s challenges as:
Incorrect interpretation of legislation and case law by inmates
Administrative incompetency – such as incorrect compilation of profile reports, quality and format of reports, and late submissions.
Wrong interpretation of legislation - Conversions of sentence into correctional supervision, as stipulated in section 276 of the Criminal Procedure Act 51 of 1977.
Submission of Reports for Lifers do not comply with basic requirements.
Setting of placement conditions must be discussed in consultation between CMC and Community Corrections
DCS has implemented a new compliance checklist and cover page to the G326
Profile reports of lifers which did not comply with the basic requirements were taken back to DCS Regions for further discussions and informed decisions
DCS further introduced a revised cover page for all other profile reports
DCS has announced a new qualification called Occupational Certificate for Offender Placement Release Practitioner, which is SAQA approved on NQF level 6. DCS is engaged in appointing a committee, whereby JICS will form part to develop the training material.
JICS plans on opening two regional offices in Bloemfontein and Gauteng.
JICS is trying to create its own corporate identity, finalising its relocation from Cape Town to Pretoria, establishing a regional office in Cape Town for the staff who can’t relocate, and finalising appointments into 42 positions.
There are various deadlines for medium and long term plans.
Recommendations to improve the Parole System
Ensure fully functional parole boards - The Minister has approved the extension of contracts of the Parole Board members to 31 March 2017. In addition, current vacancies be advertised and filled as a matter of urgency
JICS and DCS to conduct workshops to educate inmates on the parole legislation and processes
DCS has appointed a task team to make recommendations to the Minister on the review of the parole system.
DCS has developed and tested new tools for utilization by CMCs, CSPBs and Supervision Committees such as:
Re-Offending Risk Tool – statistically based risk indicator, used as a guide for indicating risk and for identifying interventions/ actions/ conditions to manage the risk
Decision Making Matrix – a tool to ensure that a standard consideration thought processes is used by all CMCs and CSPBs to evaluate the risks and to assist in making properly considered and fully motivated recommendations/ decisions
Parole Revocation Tool – a tool to ensure that parole revocations comply with a uniform approach to consider parole revocations by standardizing the criteria used during the recommendation and decision making processes. It aims to ensure consistency amongst Supervision Committees and CSPBs when parole revocation is considered
The Chairperson noted that JICS seems to have improved after the appointment of Judge Westhuizen, especially on ring-fencing its budget. He called on Judge Westhuizen to speak.
Inspecting Judge comments
Judge Johan Westhuizen noted that the debate about reform and transformation are different and disputed. Transformation is a new beginning. In some circles, transformation is as bad as it is to quote Nelson Mandela. Terms like decolonisation are preferred to transformation. Everyone in leadership do not fully appreciate what is going on in universities regarding transformation. There are serious concerns about transformation in South Africa that need to be addressed.
Judge Westhuizen further stated that he was appointed in April 2016. When he first met JICS staff, there were comments about the dull nature of the job, which he found to be untrue. JOCS staff are very motivated and discouraged at the same time. They are also suspicions that administrative obstacles are deliberately placed in their paths. These suspicions are not necessarily unfounded, given that many of them flow from red tape. The frustrations are traceable to perceived unresponsiveness from the DCS, non-binding nature of JICS recommendations, temporary contracts, discontent among staff in Cape Town resulting from relations with the previous CEO, and absence of a judge for a long period. Other issues are unsuitable office space, especially in Centurion and Gauteng, and need for legislative amendments. JICS will be happy to join in the January workshop planned by the Committee.
Judge Westhuizen stated that JICS receives complaints from below as well as from above. However, a complaint must be relatively detailed in order to sustain investigation. Anonymity and ambiguity are common problems in this regard. Another issue of concern is security of facilities.
Judge Westhuizen noted the huge mandate of the SAHRC. He requested Parliament to appoint more commissioners, given the concern expressed by Mr Masondo that the SAHRC could be left with only one commissioner soon.
Judge Westhuizen stated that overcrowding in prisons, gang wars, torture, and assaults in prisons must be addressed. International best practices must be preceded by national and regional studies. He noted that all judges are supposed to inspect prisons periodically. While inspecting at Portsmouth shortly before retiring, he learnt the value of coordination between judges. Judges should be encouraged to go beyond their localities. They need not even engage in full inspections.
The recommendations on JICS’ enforcement mandate are welcome. JICS must be more active in response to complaints, more proactive, and more visible to the public. Generally, the public does not like criminals. Awareness and education need to be undertaken. Materials on these need to be more readable. Annual Reports are not enough in this regard. Perhaps, advertising can be explored.
Regarding unresponsiveness by the Minister, an option is naming and shaming in the media. The Deputy Minister actually suggested a higher public profile for JICS in the media. However, fairness, adequate notice, and reasonableness should be the watchwords on naming and shaming.
The Bloemfontein office opening is billed for 1 November and will be accompanied by a seminar. The tentative topic for the seminar is overcrowding in prisons. Even though JICS considers this an over flogged topic, it is relevant because the public knows very little about overcrowding. For example, 96 people live in a cell built for 18-20 inmates. The public will gain more understanding of the difficulties JICS faces in ensuring prisoners’ welfare. He restated JICS’ need to have its own corporate logo.
Regarding responsiveness by the DCS, Judge Westhuizen gave an example of how he learnt of a horrible incident that occurred in January 2015. In August this year, he was shown a graphic video of dogs dragging a person out of a cell, who died two or three days later. JICS demanded a report from the DCS, threatening media exposure after over one year of inaction. The conclusion of the report is that the concerned officers should not be punished because they work under difficult circumstances. The NPA and SAPS declined to prosecute. He then summoned the regional commissioner, who made similar recommendations on JICS independence as those made by civil society. He threatened to expose the video at a seminar at the facility where it occurred unless investigation and remedial action is undertaken against the culprits. The Commissioner did not bother to dissuade this threat.
Judge Westhuizen stated that though the law is the basis of JICS’ work, the human, personal element needs to be conveyed to the public. In Bloemfontein yesterday, JICS staff members seemed in need of motivation. It appears that officials sit out their tenures and wait for the next officials to come in. previous officials have not been as supportive of JICS as the current ones. JICS recently discussed with Treasury for a new structure for JICS. When the Minister made his budget speech, he announced that JICS has 42 new positions. However, when JICS tried to advertise, they were told that these are not new positions and must be created from existing positions. JICS found this strange and came to some sort of agreement to advertise for 24 positions. The Minister claimed ignorance of this, claiming that he made his announcement based on information from officials.
Furthermore, the issue of financial independence is linked to political independence. For example, a former minister once called him to know how he is faring while he was sitting over a sensitive matter. As a retired judge, he is confident in his independence. However, the same cannot be said for young staff members of JICS who still have a long career future.
The Chairperson noted that though JICS has improved, the Committee must keep monitoring them. He restated that the Committee will hold an Indaba in January 2017 to reflect on ways to implement the recommendations made to the Committee.
Ms Pilane-Majake welcomed Judge Westhuizen’s submission.
The Chairperson thanked everyone and closed the meeting at 1pm.
- Submissions by the South African Human Rights Commission
- Submissions by Sonke Gender Justice
- Submissions by the Civil Society Prison Reform Initiative on the Administration of Correctional Supervision and Parole
- Just Detention International – South Africa submission
- Submissions by the National Institute for Crime Prevention and the Reintegration of Offenders
- Submission by the Judicial Inspectorate for Correctional Services on the Parole Regime