In a virtual meeting, the Department of Correctional Services briefed the Committee on its response to unprocedural dismissals of officials and abuse of power. The Department said it is common cause that officials have expressed their dissatisfaction against the Department in terms of how its disciplinary matters have been dealt. As a result of this, the Portfolio Committee on Justice and Correctional Services has requested the Department to respond on each one of the complaints from mainly Gauteng Region specifically at Modderbee and Johannesburg Management Areas and Western Cape Region at the Regional Commissioner’s office
The presentation highlighted the processes which were followed in each case, the outcome of the process and the legal remedies sought and the current status of each matter. The Department said it had followed all the due processes in each case and ensured that independent arbiters were involved in the disputes and in the final outcomes of each matter
Members said it would be helpful if the Committee could get the following information from the Department: the total number of disciplinary hearings undertaken in a financial year; the typical turnaround time for finalising an investigation and disciplinary hearing and; what criteria is used to determine if an official is to be suspended pending an investigation and/or hearing.
A Member asked for more information to be provided on the incident between the two Senior Management Service (SMS) Members, including when the incident took place, who was involved, why it was only being brought to light currently, the case numbers of the docket; and possibly the names of the individuals concerned.
Briefing the Committee on the newly-introduced Cannabis for Private Purposes Bill, 2020, the Department presented the regulations contained in the Bill. The Constitutional Court held the permissible amount of cannabis to be possessed must be determined by Parliament. As such, Members were interested to know how the Department determined the amount legally prescribed for personal use.
A Member asked if there will be any public participation process regarding the Bill, and if so, what the timeline around it will be
Committee Report on Cybercrimes Bill [B6B-2017]
The Chairperson tabled the Committee Report and asked Members to go through the Report and adopt it.
Mr S Swart (ACDP) moved to adopt the Report
Ms W Newhoudt-Druchen (ANC) seconded the motion to adopt the Report
Adv G Breytenbach (DA) said the DA will take it to its caucus. In principle, the DA does not have any objections to the Report.
The Report was adopted without amendments.
Response to Unprocedural Dismissals of Officials/Abuse of Power: DCS
Mr Arthur Fraser, National Commissioner, Department of Correctional Services (DCS), said the Department is committed to improving the effectiveness of its rehabilitation process. It is committed to eradicating acts of misconduct committed by officials who are not in line with the mandate of the Department.
The White Paper on Corrections emphasises the ideal correctional official. This official should embody the values DCS hopes to instill in offenders.
The officials are expected to facilitate the rehabilitation processes of the offender until social integration. However, some correctional officials are involved in acts of misconduct which are in conflict with the values embodied by the Department. Theses criminal acts defeat the mandate of the Department. As a result it brings the name of the Department into disrepute.
When the Department initiates disciplinary action against these transgressors, the perception is the Department influenced the negative outcome against the transgressor. This leads to the Department being accused of abuse of power, despite such matters being finalised by independent arbiters to a greater extent.
An inquiry was received by the Department from the Portfolio Committee raising concerns of unprocedural dismissals and abuse of power by Managers in DCS. 12 officials were noted as officials who are affected by the abuse of power of DCS Managers. Below are officials identified by the Portfolio Committee:
- Mr Maseko, G (18507492)
- Mr Masango, R.T (123589912)
- Mr Skhosana, J.S (19016221)
- Ms Phasha, A.L.M (21982376)
- Ms Moloto, P (18701418)
- Mr Kgagara, L.M (18700837)
- Mr Msiza, S (12843911)
- Mr Malesweni, A.S (18509932)
- Mr Cindi, H (18506917)
- Mr Thamaga, T.M (12373532)
- Mr Ratona, S (12275417)
- Mr Sematle, J.B (15218341)
Incident between Two Senior Management Service (SMS) Members in Western Cape (WC) Regional Office: DCS can confirm there was an incident between two SMS members in the Regional Office WC. The matter was investigated, initially internally, by a Deputy Commissioner, who in a preliminary report recommended the matter be investigated further.
An external advocate from Cape Town was appointed to investigate the matter. The report was recently received. The recommendations are currently under consideration, but it may be said, the findings put blame on both SMS members.
It can further be mentioned, both SMS officials opened criminal cases at the Goodwood branch of South African Police Services (SAPS). The senior prosecutor declined to prosecute on 23 August 2019. The prosecutor said there is no reasonable prospect for a successful prosecution.
Out of a total of 11 reported cases of alleged abuse of power, eight disciplinary hearings were taken on review externally by the concerned officials. No referral was made for the three cases.
The six cases are at Labour Court, one is finalised and in favour of the Department, and five are still pending.
Lastly, two cases were referred to the General Public Service Sector Bargaining Council (GPSSBC). One is finalised in favour of the official, another one is pending at arbitration level.
Mr W Horn (DA) said it will be helpful if the Committee can get the following information from the Department: the total number of disciplinary hearings undertaken in a financial year; the typical turnaround time for finalising an investigation and disciplinary hearing; and what criteria was used to determine if an official must be suspended pending an investigation and/or hearing. He said the information asked for is crucial for the Committee to truly evaluate the effectiveness of the disciplinary system.
Mr Fraser said the information is available, and will be submitted in writing within the week.
Mr S Swart (ACDP) said, given the environment of Correctional Services, it is very clear due process was followed. A number of the cases went on an external review to the Labour Court. The Committee needs to be more sensitive to a certain degree when exercising its oversight. It must not overstep into the domain of the judiciary involved. He said he is relatively satisfied with the explanations given, but wants information related to when matters will be finalised.
Ms N Maseko-Jele (ANC) took the opportunity to thank the Department for the work it did on the various matters. The Department needs to expose officials who are not doing their work, or are corrupt. The Department needs to be cleaned of undisciplined officials who are not pulling their weight at work.
Mr Fraser said the Department is dealing with transgressions of discipline. The Department has even taken criminal action against certain officials where necessary to ensure it exterminates this type of behaviour. All matters are taken seriously.
Prof C Msimang (IFP) said a very strict inner code is essential in the environment of Correctional Services. One must commend the authorities for the work it does. He wanted to know why convicted people always appealed against the sentence and never the judgment. He asked if it means the convicted person admitted to guilt, but did not want to accept a harsh sentence. He asked if there are alternative sentences, especially looking at the weight of the offences against the weight of the sanction.
Mr Sihle Zikalala, Deputy Commissioner: Intergovernmental Relations, DCS, said the Department of Correctional Services actively trusts the relationship between an employer and employee when going through the lesser sanctions. There are alternative sanctions which looks at the seriousness of the matter.
Mr Fraser said, because of the turnaround time related to external role players, it will be very difficult for the Department to attach timeframes to it.
Adv G Breytenbach (DA) asked for more information on the incident between the two SMS Members. She wanted to know when the incident took place, who was involved, why it was only being brought to light currently, the case numbers of the docket, and possibly the names of the individuals concerned. She said she reported an incident of assault, which took place at a prison between two officials, to Judge Cameron to investigate. She wanted to know how it is possible for an incident of such a nature to take place, and the person in charge of the prison claims not to be aware of the incident taking place.
Mr Pieter Kilian, Director: Code Enforcement Unit, DCS, said the incident involving the SMS Members in the Western Cape, took place on 1 August 2019. It was a male and a female. Both individuals were not suspended. Members need to remember the balance of proof in a criminal case is different. An international investigation was done by the DeputycCommissioner, who then made a recommendation for an external investigator to be appointed, to maintain objectivity. An advocate from Cape Town was appointed to do the investigation, and made findings which are not yet finalised. The case number can be provided in writing.
Mr Fraser said feedback on the matter will be forwarded in writing.
Ms W Newhoudt-Druchen (ANC) thanked the Department for the presentation. She said she failed to see how the presentation titled ‘Abuse of Power’ was lost in the context of what was presented. The abuse of power disappeared, or was not easy to establish in relation to the presentation which was presented.
Mr Kilian said the first case number is eight (2019), and the police station is Goodwood. The second case number is 10 (2019), and the police station is Goodwood. It will be unfair to the officials implicated, as well as to the National Commissioner, to talk about those issues. The investigation report must be considered, and an outcome must be made first. The Department must respect the two officials involved.
Mr Fraser said the title of the presentation is such because it is what the Committee requested the Department to respond to, as an issue of concern.
Adv Breytenbach said she is very concerned about the lack of detail surrounding the incident. There were extensive details provided for all other incidents. The one under question however, everyone seemed to be stupid. There were two witnesses to the incident, and the offence was of a serious nature, which involved two senior officials. A woman was apparently assaulted, her superior was a man, and yet in an entire year there was no development on the matter.
She said she will be following up with the National Prosecuting Authority (NPA) on why the matter was dragging on for over a year with nothing happening. Members of the Department must stop protecting individuals. The Committee has an oversight role over the Department, and has every right to know the details. She emphasised she wants the details today.
Mr Fraser said further details on the matter can be provided in writing. The NPA looks at the issue on a different balance of probabilities, and therefore must have had an understanding as to why it reached a certain decision. The Department takes the matter very seriously. This is why the matter was sent for external investigation. The report was before him, however, the Department will first consult with the Executive within the next week, before taking any decisions. Due process must be followed.
Regarding the title of the presentation, he said the Department is trying to locate the abuse of power by the Department. He believes it is the registration of claims by those officials the Department abused. The Department is merely responding to the claims made by those individuals through the Committee.
Cannabis for Private Purposes Bill, 2020 (Bill 19 of 2020) briefing
Mr Sarel Robbertse, Senior State Law Advisor, said the Constitutional Court declared Section 22A(9)(a)(i) of the Medicines and Related Substances Control Act, 1965, as well as Sections 4(b) and 5(b) of the Drugs and Drug Trafficking Act, 1992, inconsistent with the Constitution. This means it is declared invalid to the extent it respectively prohibits the use, possession or cultivation of cannabis, by an adult in private - where use, possession, or cultivation of cannabis, is for personal consumption by the adult in private.
Regulation of Cannabis Bill
- Minister of Justice and Constitutional Development and Others v Prince (the Judgment):
- The Constitutional Court declared –
- Sections 4(b) (possession) and 5(b) (dealing on the basis of cultivation) read with Part III of Schedule 2 of the Drugs and Drug Trafficking Act, (the Drugs Act); and
- Section 22A(9)(a)(i) of the Medicines and Related Substances Control Act, read with Schedule 7 of Government Notice No. R. 509 of 2003, unconstitutional on the premises it amounts to an impermissible limitation of the right to privacy.
- The Court suspends the order of invalidity for 24 months (from 18 September 2018 to September 2020) to give Parliament an opportunity to correct the constitutional defects in the Drugs Act and Medicines Act.
The Minister of Justice and Constitutional Development and Others v Prince
- The Court granted interim relief by way of a reading-in to ensure during the period of suspension of invalidity it will not be a criminal offence for an adult person –
- to use, or be in possession of cannabis, in private for his or her personal consumption in private; and
- to cultivate cannabis in a private place, for his or her personal consumption in private.
- According to the Judgment the effect of the reading-in is:
- An adult may use or be in possession of cannabis in private for his or her personal consumption in private.
- The use, including smoking, of cannabis in public or in the presence of children or non-consenting adult persons is not permitted.
- The use or possession of cannabis in private, other than by an adult for his or her personal consumption is not permitted.
- The cultivation of cannabis by an adult in a private place for his or her personal consumption in private is no longer a criminal offence.
- In determining if a person is in possession of cannabis or not, for a purpose other than for personal consumption, an important factor to be taken into account will be the quantity of cannabis found in his or her possession.
- Where a person is charged with possession of cannabis, the State will bear the burden to prove beyond reasonable doubt the purpose of the possession was not for personal consumption.
Further, in terms of the Judgment:
- The prohibition of the performance of any activity, in connection with the cultivation of cannabis, by an adult in private for his or her personal consumption, in private, is inconsistent with the right to privacy entrenched in the Constitution and is constitutionally invalid.
- Cultivation of cannabis in private by an adult for personal consumption in private, should not be dealt with on the basis the cultivation must be in a dwelling or private dwelling. One may cultivate cannabis in a place other than in one’s garden, if the place can be said to be a private place.
- Dealing in cannabis is a serious problem in this country, and the prohibition of dealing in cannabis is a justifiable limitation of the right to privacy which the Court did not "decriminalise".
- There was no persuasive reason why the Court confined its declaration of invalidity to the use or possession or cultivation of cannabis at a home or in a private dwelling. As long as the use or possession of cannabis is in private, and not in public, and the use or possession of cannabis is for the personal consumption of an adult, it is protected.
- The permissible amount of cannabis which may be possessed, must be determined by Parliament.
- The effect of the reading-in adopted above is, whenever the impugned provisions prohibit the use or possession or cultivation of cannabis, an exception is created with the result the use or possession of cannabis, in private, or cultivation of cannabis in a private place for personal consumption, in private, is no longer a criminal offence. All the time this is so only in respect of an adult and not a child (LM v Minister DOJ).
- Amends the Drugs Act to remove restrictions on the commercial cultivation and production of hemp (Clause 1(2), Clause 10 and Schedule 5):
- In foreign jurisdictions - cultivation and processing of hemp is strictly regulated by legislation.
- Requires other legislation to be promoted to regulate the cultivation and production of hemp – in the absence of such legislation, hemp is regarded as cannabis within the purview of the Bill and subject to the provisions of the Bill.
- The SAPS raised a concern, it is not possible for it to distinguish between hemp and cannabis, which may make enforcement difficult – It is submitted subparagraphs (a) and (b) address this concern.
- Commercialisation of cannabis (high THC), is similar to tobacco and alcohol used in various foreign jurisdictions, to address harms associated with cannabis (Canada, US States).
- The Bill addresses the impermissible constitutional limitations of sections 4(b) and 5(b) of the Drugs Act on the right to privacy of an adult person, to use and possess cannabis or cultivate cannabis plants in private, for personal use (clause 2).
- Regulates the use and possession of cannabis, and the cultivation of cannabis plants by an adult for personal use, to protect other adults and children against the harms associated with cannabis through provisions –
- Limit the number of cannabis plants which may be cultivated by an adult and impose restrictions on the cultivation of cannabis plants for private use (Clause 3);
- Limit the quantity of cannabis which may be possessed by an adult, and impose restrictions on the possession and storing of cannabis (Clause 4);
- Criminalise the smoking of cannabis in a public place, or in a private place, in the presence of non-consenting adults, in the immediate presence of a child, within a prescribed distance from a building or where the smoking may cause a hindrance to others, or the consumption of cannabis at a place prescribed by regulation, where consumption of cannabis is prohibited (Clause 5).
Regulate the use and possession of cannabis and the cultivation of cannabis plants by an adult for:
Protect children against the harms associated with cannabis through criminal offences (Clause 6).
- Provide for proportional sentences which a Court may impose for the offences provided for in Clauses 3, 4, 5 and 6 (Clause 7).
- Provide for the expungement of criminal records of persons who were convicted of offences of the use or possession of, but not dealing in, cannabis (Clause 8).
- Provide for regulations to be made to further regulate aspects necessary for the implementation of the Bill (Clause 9).
- Amend –
- Part II of Schedule 2 to the Drugs Act by the deletion of "Dronabinol [(-)-transdelta-9-tetrahydrocannabinol]".
- Part III of Schedule 2 to the Drugs Act by the deletion of the substance "cannabis" and "tetrahydrocannabinol";
- Various provisions of the National Road Traffic Act, 1996, to further regulate aspects relating to the consumption of THC in so far as it affects road traffic matters provided for in the Act; and
- Schedule 1 of the Child Justice Act, 2008, to ensure level one diversion as contemplated in Section 53(2)(a) of the Act, will apply to minors, in respect of less serious offences provided for in in the Bill.
(Clause 10 and Schedule 5).
- In terms of the Judgment, if Parliament fails to promulgate legislation to correct the constitutional defects by 17 September 2020, or within an extended period of suspension, the reading-in discussed in paragraph A3, will become final. There is a possibility the Bill may not timeously be passed by Parliament. In Ramuhovhi and Others v President of the Republic of South Africa and Others  ZACC 41, at paragraph  and Minister of Justice and Correctional Services v Ramuhovhi and Others  ZACC 44 at paragraphs  and , the Constitutional Court held, interim relief to address constitutionally defective legislation coupled with a period within which legislation must be promoted to correct such legislation, have the effect the interim relief continues to apply until it is changed by Parliament. Therefore, a failure to comply with the deadline set by the Constitutional Court does not bar Parliament to pass the Bill after the expiry of the deadline.
Adv Breytenbach said the Constitutional Court held; the permissible amount of cannabis to be possessed must be determined by Parliament. She said she is interested to know how the Department determined the amount which is legally prescribed for personal use. It seemed some clauses are mutually destructive.
Mr Robbertse said the Court considered foreign legislation. It received input from various institutions such as the NPA, and SAPS, who are quite knowledgeable on the matter. The obligation is on the adult to take reasonable measures when dealing with cannabis.
Mr Swart said he appreciates the presentation, including the researcher’s documentation, which was very comprehensive. One needs to work through a lot of it. Clearly the topic at hand is a very controversial one, and many people are concerned with the court ruling. The Committee has a Constitutional Court judgment and Bill before it, including the Southern High Court judgment, which needs to be dealt with. It is important for the Committee to understand the difference between Cannabidiol (CBD) and Tetrahydrocannabinol (THC).
Mr Robbertse said the full prescription is contained in the Act. Documents which actually discuss the various options implemented by other countries, including the commercialisation of THC rich cannabis, regulated similarly to tobacco and alcohol, will be made available to the Committee.
Ms Newhoudt-Druchen asked for the presentation to be emailed to Committee Members, as it was different to the presentation which was previously emailed. She wanted to know if school students who are 18 will be regarded as adults when it comes to the possession and usage of cannabis on school property.
Mr Robbertse said if the person is over 18, the person will most likely be regarded as an adult, if the cannabis is not concealed from public view. The schools Act addresses the issue of drugs on school property.
Ms Y Yako (EFF) said she agrees with Adv Breytenbach about the determination of usage quantity. She asked if there is or will be any public participation process regarding the Bill, and if so, what the timeline around it will be.
Adv Breytenbach said she will like to have a look at the various measures considered before arriving at the final decision on the quantity amounts. Besides the NPA and SAPS, she wanted to know who else was consulted for input regarding the Bill’s quantity amount, and certain clauses.
Mr Robbertse said the original timeline will not be met. However, the Constitutional Court judgment will be catered for. Regarding the amounts, he said foreign legislation and regulations of other countries were consulted on this. He did not think a policy decision was taken regarding the commercialisation of cannabis, however, the Department is under an obligation to give effect to the Constitutional Court judgement. According to his knowledge of the legislation, the Department of Agriculture is responsible for the commercialisation of cannabis.
All the documents regarding the background considerations in reaching the Bill’s quantity limits, and the position of other countries when dealing with the regulation of cannabis, will be made available. Legal opinions and extracts from the Department will be made available.
The Chairperson thanked the delegation and Committee Members for attendance.
The meeting was adjourned.
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