Measures taken by Department to deal with COVID-19: continuation; with Minister & Deputy Minister

Meeting report

Opening remarks

Co-Chairperson Magwanishe noted that the meeting was a continuation of the previous meeting which the Minister had left early and so had been unable to respond to all the questions of the Members. The previous week the Committees had engaged extensively on operational matters with officials from the Department of Correctional Services, the Department of Justice and Constitutional Development and the National Prosecuting Authority, but they had agreed to meet with the Minister at a later date.

Co-Chairperson Magwanishe explained that as the Minister had made a presentation the previous week, Members would be given an opportunity to ask questions.

Discussion

Mr J Selfe (DA) asked the Minister to give some clarity regarding the announced release of prisoners from correctional centres. Was it still was happening, and if so, how many, when and who was to be released and who would not be released? The matter was creating a great deal of consternation amongst the public.

Adv S Swart (ACDP) recalled Dr Ndlozi’s remarks the previous week that screening was not helping. He, having experienced Covid-19 himself, tended to agree with Dr Ndlozi. Alternate to social distancing in prisons, which was understandably very difficult, he wondered whether it would be possible to quarantine sick and vulnerable people and boost the immunity of the systems of prisoners with vitamin C and with zinc, which was what he had used and which had been very helpful. The Minister had indicated that he was concerned about that issue.

Secondly, Adv Swart noted that there was a great concern amongst the public about certain of the regulations. The Executive had indicated that it was open to input about the processes. There was great concern about the need for a curfew – he had asked that question the previous week – and the issue relating to jogging, walking and cycling which seemed to be very invasive. He urged government and the Executive to look at the issue. If one looked at the cases, people were being fined R500 for walking, cycling or jogging. It was verging on the De Minimis rule. He asked for a comment on the burden that those minimal fines were causing. Had there been an improvement in the consistency of application of the regulations? In particular, the regulations allowed one return to one’s home but people were being held up at police roadblocks. Again, there appeared to be a disconnect between the Department and the regulations and the application of those regulations. Did the Department approve every regulation? Those regulations were becoming a great concern. While he understood the importance of public health, there were increasing concerns about personal freedoms.

Mr W Horn (DA) asked the Minister about the functionality of the whole legal system and whether the Minister could give an indication of that. What Members had seen during Lockdown Level 5 was that, except for criminal cases dealing with Covid-19 transgressions as well as the limitation of all civil matters to urgent matters, all other exercises in law had been put on ice and that would continue during the Level 4 lockdown. Legal practitioners, other than conveyancers, were not back at their offices yet and so when it was said that 1.5 million workers were returning to work that day, for all practical purposes, the whole legal system was in a state of limbo. It was not healthy for the democracy and the growing unease amongst the public. It was also dangerous to preclude people from legal contracting during level 4. How did the Minister see the legal system and the court system getting into a better state of functionality?

Mr Horn stated that the Committee Secretary had sent Members the directives for the Master’s Office and those revealed a carefully thought out process that had allowed the Office to become functional. However, for the court system, one did not see the same planning. He had asked the Department the previous week what the status would be of the backlog roll. He had not received an answer. Previously, depending on how backlog was defined, the backlog had been historically from 33 000 to 40 000 cases. Civil matters were the same. It was the old truism of justice delayed was justice denied. From a civil litigation perspective, people needed to get into civil courts to exercise their rights. Part of the way for businesses to survive in tough times was to get the courts to assist them with declarations that they were entitled to payment, for example,

He asked that the Minister give some indication of what could be expected in the courts over the next few weeks.

Ms W Newhoudt-Druchen (ANC) asked the Minister if he had an update since the previous meeting. Was there anything that he had learnt and that could be done better? She asked how, if an inmate tested positive for Covid-19, that inmate was isolated, especially considering the overcrowding in correctional facilities. Was the inmate moved to a special medical area?

Ms M Mmola (ANC Mpumalanga) asked about the 19 000 low-risk prisoners who were to be released. What was the procedure? Secondly, did the Department have enough personal protection equipment (PPEs) in all correctional facilities for the officials who came from their homes each day? Of the inmates who had tested positive in the prisons, how many had recovered? She asked the Minister to provide the Committees with updated statistics.

Adv G Breytenbach (DA) informed the Minister that she had sent him a letter the previous week but he had not had time to reply. The Minister could respond immediately but she would be grateful for a written reply as well. What were the specific reasons underpinning the curfew? What was the legal framework in terms of which the curfew had been imposed and what was the rational justification for such a measure? How precisely would curfew assist in stopping or slowing down the Covid-19 virus?

Why was there a “rule” that exercise could only take place between 6 am and 9 am and how would that help to stop the spread of the virus? What was the plan to deal with the thousands of people who had paid admission of guilt fines for the “Covid regulations” without knowing that doing so would give them a criminal record? Those people now had a criminal record.

Adv Breytenbach noted that criminal trials were not proceeding. What was the plan to deal with the backlog? There was no consistency in rules and practices across provinces. Why was that so? There was no reason why courts could not sit.

Co-Chairperson Magwanishe encouraged Members to add their views and those of their parties in order to enrich the process and to suggest issues that could be taken to the Command Council for consideration.

Response by the Minister of Justice and Correctional Services

Minister Ronald Lamola explained that what had caused the confusion about the released prisoners was a leak or speculation in the public domain. Deputy Minister Holomisa had responded to the question in the last meeting. He did not want to add any fuel to the speculation and believed that it was better left at Deputy Minister Holomisa’s response. He did not want to create further confusion in society. It was best to await the announcement, if there was one, from the President because that would come with all the necessary information. As background, he explained that from the onset when Covid-19 was announced, the Department had started dealing with cases internally and had looked at the various measures to respond to the situation. The President immediately stopped visits to the correctional services and that had helped to buy time. The Department of Correctional Services (DCS) had been given the opportunity to prepare sites and to prepare a way to respond to the virus, including the development of the Standard Operating Procedures (SOPs) as produced in the previous meeting. It was not that he did not want to provide information to the Committee of whether there would be a release or not, it was just that it was a premature question as protocols had to be concluded before anything could happen.

In response to Adv Swart’s question regarding vitamins and immunisations in the centres, the Minister stated that the Department of Health (DoH) had advised that the Department of Correctional Services (DCS) should practice the simplest methods possible, i.e. washing hands, cleaning etc. as was being practised in other sectors of society. The problem with immunisation was that there was no vaccine recommended by the World Health Organisation (WHO) or DoH for the virus, so the best was those measures mentioned and DCS was sticking to those guidelines. The normal flu vaccines were prepared a year in advance and it was not practical to immunise everyone in the country: the same applied to inmates. He stated that the inmates had to be treated in the same way as all other people in society.

The Minister addressed the issue of frustrations by members of the public and the need for a “curfew”. Members were referring to it as a “curfew” because internationally it was referred to as a curfew. However, the regulations spoke only to a “restriction on movement between 20:00 and 05:00”. That had come about because the government was dealing with “unchartered territory” as the President had described it­­­­. 1.5 million people were going back to work which meant that there was a lot of movement that the police would have to monitor. The assessment was that when people finished work at 17:00 or 18:00, there would be a temptation to go to greet friends and socialise and that would increase the burden on the police during the period of 20:00 to 05:00. There could be many other points of convergence in places across the country. The police had said that they would need time to be ready to deal with social distancing and so, in the meantime, they required a restriction of movement so that the police knew from 20:00 to 05:00, they would only be dealing with those who had special permits.

It was the same issue with jogging. If jogging were allowed for the whole day, the police would have to deal with joggers for the whole day instead of undertaking other necessary business. At level 4, there was a certain restriction of movement so there had to be a reason for people moving about during the day, and people could not say that they are going jogging. The matter was being dealt with on the basis of what the state was able to handle. The regulations were designed to give the state the breathing space to function within a specific period of time. The Command Council believed that it was still within the limits of social distancing and of allowing the country to buy time to be ready to deal with the situation as it arose. It was related to Covid-19; it was not the state trying to stretch its muscles.

In response to Mr Horn, the Minister addressed the question of the functionality of the courts. The functionality of the courts was linked to the functionality of the level at which the country was, i.e. Level 4. Some legal practitioners could do certain work but it was not a full opening. People could go to court. For example, they could still challenge rules in court. He had heard Adv Breytenbach say that it was easy to practice social distancing in courts. However, when one looked at the international experience, especially in New York, which one could say was the epicentre of the virus, that international experience had shown that it was not a clear, hard and fast situation because there had been courts where judges had passed on as a result of the disease and other personnel had been affected. Whoever was present in a court when someone tested positive, had to be found, tested, etc. When the disaster had been declared, there had been queues outside courts waiting to be screened. There were also a lot of people inside the courts and courts were also paper-laden and as the paper moved from one person to many others, it carried the virus. The intersection of human beings and documents enabled the spread of the virus.

The Minister stated that in East London, everyone who might have come into contact with those who had tested positive, including presiding officers, translators, etc. had had to be tested and quarantined. If one looked at the DoH map, it showed that Gauteng and the Western Cape, in particular Cape Town, Durban, Pietermaritzburg, East London, Port Elizabeth and Bloemfontein was where the biggest courts were situated and that was where the virus was spreading. The courts then became fertile ground for the disease and a lot of people would have to be traced if anyone were found to have the virus. The Department had a responsibility to protect the public in terms of the DoH guidelines. However, the Department had been very careful to allow Heads of Court to determine which cases could be heard and so some Heads had used technology. That was why Adv Breytenbach felt that there was a confusion of direction that was not consistent across the country. The Department had to leave the Heads of Court with some discretion to determine for themselves which cases they would hear, within the parameters of the guidelines as well as the Level 4 regulations.

The Minister explained that DoH had also advised that people over 60 with co-morbidities who were vulnerable to the disease should not be permitted to work in high risk areas. He believed that as time passed, the Command Council members would be able to understand the environment as it was very difficult dealing with the unknown. Even for the foreseeable future, the immediate solution was what the Department had spoken about in its budget speech: the modernisation of the criminal justice system and the automation and digitisation which would enable the system to function without people coming into contact with others. That was where the focus had to be. He understood that the wheels of justice had to turn and to turn quickly, but they might push people to the unknown.

He informed Ms Newhoudt-Druchen that the Department had informed the Committees of the SOPs for isolation at the previous meeting. He admitted that no Department could claim to have sufficient PPEs but all minimum requirements were there to enable the officials at Correctional Services to do their job. The screening device to check the temperature was not easy to procure as everyone was scrambling to procure those devices. Nevertheless, all officials were screened every day when they came in for their shift.

In response to the question by Adv Breytenbach of whether the regulations were legitimate, the Minister stated that he had explained that.

On the PPEs, one of the things that DCS had done was to arrange for the DCS to manufacture its own masks for officials and inmates - that was happening and already 19 000 masks had been produced. The Department was also looking to produce its own soap and was getting the specifications from DoH for making the soap. By mid-May, the Department would be able to say whether it could produce soap.

As to how many people had recovered, the Minister informed Ms Mmola that 91 persons – officials and inmates - had been infected in the East Cape and 18 had recovered. In the Western Cape – 49 were infected – 46 officials and three inmates - and one death was under investigation by DoH to determine whether it was Covid-19 related. Limpopo had two infections and one recovery. In Gauteng 11 people - three officials and eight inmates – were infected. The officials were most affected but the screening had minimised the number of inmates who had come into contact the disease.

Co-Chairperson Shaikh thanked the Minister and called for the second round of questions.

Further Members’ Questions

Mr E Mthethwa (ANC; KZN) asked the Minister if there was a plan for prisoners who were eligible for release but were found to test positive for the virus. Would such a person go to his or her family or be kept in prison longer? Were there any courts that had tested positive and how was DoJ dealing with them, especially the bigger courts?

Ms N Maseko-Jele (ANC) asked if there was a waiting period for those that had recovered before they returned. In terms of the control of the queue at the courts, she was concerned because people had to stand in long queues for clinics and now there were long queues for the Master’s Office – maybe 50 a day. Some people would start queuing early. They would come at 4am or 5am. Did the Department have the capacity to manage the queues? The country would soon go to Level 3 and everyone would have to balance the work around Covid-19 while continuing with the daily work. How ready was the Minister with the mid-term reports for his Departments?

Mr S Mfayela (ANC; KZN) thanked the Minister for his informative presentation the previous week. He was concerned about correctional services centres in the rural areas. Rural areas sometimes became the black spot. Was there a special arrangement for facilities in rural areas?

Mr T Dodovu (ANC; North West) wanted to join the queue to thank the Minister for the wonderful work he was doing. He marvelled how the Minister could grasp and analyse the situation and deal with the issues. It was inspiring. He was worried about the conduct of his own people. It was worrisome and he feared that as a result of the way that the people were conducting themselves, the country might have to go back to level 5 instead of to level 3.

He added that the Department was using some of the facilities as quarantine zones, which was important, but he thought that the President should seriously think of releasing those prisoners who should be released. The magnitude of the crisis was such that the country should be ready on all fronts. It was an important matter because it was a preventive measure to allow the Department to mitigate circumstances.

Mr S Zandamela (EFF; Mpumalanga) noted that the country was approaching the winter season and asked what measures the Minister had put in place to immunise inmates.

Response by the Minister

Minister Lamola informed Mr Zandamela that he had answered the question about immunisation when it was put to him by Adv Swart. He had explained that Correctional Services followed the guidelines of the Department of Health that stated that inmates should be treated the same way as all members of the public. It was impossible for the DoH to immunise all South Africans against the approaching flu season. Likewise, it was impossible for the Department to immunise all inmates. The flu immunisation was always ordered a year in advance and was for the average flu, not for Covid-19. The flu immunisation should be reserved for health practitioners. Members of the public had to wash hands, etc. It was a global issue.

The Minister noted that the question about releasing prisoners had been responded to when he had responded to Mr Selfe. The matter was receiving serious consideration. The Executive understood that it was an urgent matter. He did not want to fuel speculations in the country. Regarding special programmes in rural prisons, he had to say that the Standard Operating Procedures applied to all correctional facilities across the country. Washing hands was the critical thing. Most of the rural facilities were not very big and were manageable facilities. There were very few large facilities. It was not an urban disease so people had to take care across the country. One also had to remember that international tourists had been moving around in the rural areas. No one was immune. The officials at Correctional Services had been taken through the training by the National Commissioner.

He told Ms Mmola that the mid-term reports for the Departments were ready but Covid-19 had turned plans upside down and had made some things irrelevant, and the Executive had reconsidered the priorities. Regarding social distancing in the courts, he explained that security personnel had been assigned to ensure that there was social distancing in the queues. Most of the functions of the Masters of the Courts could be done electronically and he was hoping that as the country moved back into the courts, everything that could be done electronically, would be done electronically or through digital platforms. That was the future for that kind of work.

The Minister stated that the Department would be advised by the DoH before releasing anyone who had tested positive. DoH would advise if a person could be transferred to a quarantine site, or whether the person should complete the quarantine period in the facility. Finally, he explained that DoH stated that officials could return after 14 days as that was the period of quarantine but the Department relied on DoH for advice. Mr Swart could also advise about the quarantine period.

Co-chairperson Shaikh asked for any follow-up questions.

Follow-up questions

Adv Swart stated that he was on Day 50 since he first had Covid-19 symptoms but he had been allowed out of isolation two weeks after he had experienced the first symptoms. He reminded the meeting that Co-Chairperson Magwanishe had asked Members to provide input and recommendations for the Command Council.

Adv Swart pointed out that there was an increasing pushback from the public and the Command Council needed to appreciate that. The explanation given by the Minister for jogging and cycling times was not persuasive. The limitation of movement was a very, very severe restriction and when one considered the number of people without food at that moment, who were saying that they would rather die from Covid-19 than starvation, those were very serious issues. In the light of those facts, he asked that the Command Council consider declaring spiritual leaders as essential services. There was an urgent need for pastors, rabbis, imams to visit their congregations, albeit with very strict hygiene regulations. That would go a long way towards dealing with the psychological and emotional situation. He was not talking about gatherings but asked that pastoring and counselling be allowed as that would go a long way towards alleviating the situation. Spiritual leaders needed to be classed as essential services and be allowed to visit their congregants.

There had been a lot of support from the public but the goodwill was starting to dissipate. The explanation for why things were happening the way they were was a very heavy-handed response. It was that the police needed to do this and that. Things that the police needed to do was not an acceptable explanation. Was it correct that the United Nations had warned that SA had created a toxic lockdown culture through an increasingly heavy-handed and brutal law enforcement strategy? Speaking from personal experience, he agreed that it was an unknown terrain, but it was necessary to balance issues of starvation and deprivation and the number of people who might die from that, with the need of Covid-19. There was increased concern from his party’s side as well about whether the regulations were constitutional and whether they would withstand scrutiny in court. He asked about the mediation process that the Minister had spoken about.

Response and concluding remarks by the Minister of Justice and Correctional Services

The Minister stated that the Executive had been open to constructive criticism from the first announcement of Covid-19 measures and had remained open to constructive criticism and to be persuaded otherwise. The Council had opened up for public inputs and had benefited from those inputs by the public and by Members of Parliament. The balancing of the economy, social rights, and the rights of people to life was always considered by the Command Council. It was not an easy task because the Council was dealing with an unknown animal.

The issue of mediation and arbitration was an important one and the Minister wanted to encourage the public to use that mechanism, but it was a voluntary mechanism. In the past month, he had come to realise that most disputes could be resolved, including disputes between the public and government, and courts should be the last resort. Regarding pastors and imams helping congregations with counselling and pastoring (but not church services), the Minister took the point and promised that he would engage with the Minister of Social Development. He would take the message to her to consider whether it could be allowed without the situation being abused.

The Minister recognised that the success of SA’s response to Covid-19 was not only in the hands of government but also in the hands of the public. Social distancing by the public, without monitoring, was important. Non-government organisations and other structures had an important role to play.

The President had extended a hand to members of society because some South Africans understood specific situations and had made him aware of those situations. The Council had benefitted from the inputs of the public. The country was in it together.

Concluding remarks

Co-Chairperson Shaikh stated that the Committees had benefitted from the extensive discussion and information sharing by the Minister and Deputy Ministers as well as the Departments over the two meetings and Members were grateful for the level of insight. She assured the Minister that it was not the end of the Committees’ oversight role and the Members would meet with the Minister again. She thanked the Minister and declared the meeting closed.

The meeting was adjourned.