Correctional Matters Amendment Draft Bill; Cybercrimes Bill: update with Deputy Minister

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Justice and Correctional Services

03 November 2020
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

 17 Jun 2020

ATC200617: Report of the Select Committee on Security and Justice on the Cybercrimes Bill [B 6B – 2017] (National Assembly – sec 75) (introduced as Cybercrimes and Cybersecurity Bill [B 6 – 2017]), dated 11 June 2020

07 Nov 2018

ATC181107: Report of the Portfolio Committee on Justice and Correctional Services on the Cybercrimes and Cybersecurity Bill [B 6-2017] (National Assembly – section 75), dated 7 November 2018

The National Commissioner of Correctional Services apologised for the delayed introduction of the Correctional Matters Amendment Bill and offered explanations for the delay. The Bill was to amend the Correctional Services Act to clarify the conditions for consideration of parole for offenders who committed crimes before 1 October 2004, giving effect to the Constitutional Court judgment in OC Phaahla v Minister of Justice and Correctional Services and Another, which had found this section of the Act to be unconstitutional. The Constitutional Court had given 24 months for the Act to be amended in compliance with the Phaahla judgment which was 3 May 2021.

The Committee was not satisfied with the explanations offered for the delay, and instructed the Department to take action against the officials responsible. Committee members suggested a change to the definition of “Minister", asked about the parole regime for offenders above the age of 65, and about the application of the Van Wyk and Van Vuuren judgments and asked what public engagement had been undertaken on the Bill.

The Department presented an update on the Cybercrimes Bill, which had been delayed by printing errors. The D-List of changes requested by the National Council of Provinces had now been finalised.

The Committee was frustrated by the delays but understood the importance of ensuring the Bill's integrity.

Meeting report

Inkosi Patekile Holomisa, Deputy Minister of Justice and Correctional Services, apologised for the delayed introduction of the Correctional Matters Amendment Bill, which was the result of a lot of back and forth within the Justice, Crime Prevention and Security (JCPS) Cluster and the Cabinet Committee over the intention of the Bill. The essence of the Bill was simple: to amend the Correctional Services Act to clarify the conditions for consideration of parole for offenders who committed crimes before 1 October 2004, giving effect to the Constitutional Court judgment in OC Phaahla v Minister of Justice and Correctional Services and Another, which had found this section of the Act to be unconstitutional.

The Chairperson said that it was discouraging that it had taken so long to finalise such a short, simple Bill. How would a complex Bill be handled? It was unacceptable and the Department needed to get its house in order. The Bill had already been late by the time it reached Cabinet for approval. The relationship with the judiciary should not be strained unnecessarily because department officials did not want to do their jobs and faced no consequences. The deadlines of the Constitutional Court must be met.

Mr S Swart (ACDP) endorsed the Chairperson’s statement. He noted that it was Parliament which was instructed to pass legislation, and the Chief Justice had pointed out that there was nothing to stop Parliament simply passing legislation to ensure that Constitutional Court deadlines were met.

Deputy Minister Holomisa accepted the Committee’s reprimand and said he would convey it to the Minister. He reported that the provisions of the Bill were in fact being implemented already. More than 2500 offenders had been identified who would benefit from the provisions and more than 1800 were being considered for parole in line with the Bill.

Mr Arthur Fraser, National Commissioner of Correctional Services, noted the Committee’s reprimand.

The Chairperson was not satisfied. What had caused the delays? If some officials had not done their jobs, what would be done? The Department needed to carry out consequence management and report to the Committee.

Deputy Commissioner Vuyo Mlomo-Ndlovu, Department of Correctional Services (DCS), explained that DCS had focussed on the administrative side of implementing the Constitutional Court judgement, forgetting that this should have been taking place parallel to processing the Amendment Bill itself.

The Chairperson did not think that the Constitutional Court would be satisfied with this excuse.

The National Commissioner of Correctional Services said that he accepted responsibility for the Department’s failure and apologised.

Correctional Matters Amendment Bill: briefing
DCS Deputy Commissioner: Remand Operations Management, Ms Vuyo Mlomo-Ndlovu, explained that the purpose of the briefing was to request the Committee note the Constitutional Court judgment and support the draft Correctional Matters Amendment Bill. The purpose of the Bill was to amend the Correctional Services Act in line with the Constitutional Court judgment in OC Phaahla v Minister of Justice and Correctional Services and Another. The Court had found that the offender, who had been convicted before but sentenced after 1 October 2004 when a new parole regime came into effect, should be considered for parole under the regime that was in place at the time of the offence and not at the time of the sentencing. Another minor amendment was the definition of “Minister” in the Act was changed from "Minister of Correctional Services" to "Cabinet member responsible for justice and correctional services". The Department had updated its information technology system for identifying offenders who were affected by the Bill.

Mr J Selfe (DA) asked if there would be public hearings on the Bill, notwithstanding its simplicity and the fact that it originated from a Constitutional Court judgment.

The Chairperson confirmed that there would be public hearings.

Mr Selfe suggested that the definition of Minister be changed to account for the possibility that the Minister would not necessarily always be responsible for both justice and correctional services. The Bill should therefore refer only to “the Cabinet member responsible for correctional services.”

Mr Jacques Van Wyk, DCS Legal Services, replied that the latest version of the Draft Bill referred only to correctional services and not justice.

Mr X Nqola (ANC) noted that the Correctional Services Act provided consideration of parole if an offender had reached the age of 65 and served 15 years. The Bill did not say anything about this provision.

Mr Van Wyk explained that the Bill did not change this provision, it only stipulated that the applicable parole regime is the one that was in place when the crime was committed, not when the offender was sentenced.

Ms W Newhoudt-Druchen (ANC) asked what would happen if an offender reached the age of 65 while incarcerated.

Mr Van Wyk explained that they would still become eligible for parole after they had served 15 years. It did not make a difference how old they had been when the crime had been committed.
Mr Nqola did not think his question had been answered. Why were the provisions for offenders over the age of 65 not included in the Bill?

Mr Nqola asked if any external stakeholders had shown interest in commenting on the Bill.

Ms J Mofokeng (ANC) asked if the Department had received comments on the Bill from the public.

Mr Van Wyk replied that some comments had been received, mainly in support of the Bill or for the parole regime in general. DCS was busy with a full review of the 1998 Correctional Services Act

Ms Mofokeng asked how many prisoners had been affected by the Van Wyk and Van Vuuren judgments.

Mr Van Wyk replied that the Van Wyk and Van Vuuren judgments were under consideration by the Department.

Mr W Horn (DA) noted that the standard process of public engagement had not been followed and this might impact on the Committee’s public participation programme. What public engagement processes had the Department followed during the development of this Bill?

Mr Van Wyk replied that Rule 159 had been followed to speed up the development of the Bill. A Draft Bill had been published for public comment in July 2020. Numerous comments had been received but further comment on the tabled Bill would still be required.

Mr Horn asked to what extent the comments received had influenced the content of the Bill. These comments should be considered by the Portfolio Committee as well.

Mr Van Wyk replied that the comments received did not have any issue with the Bill itself. Most of them had been general comments on the parole regime. These comments could be forwarded to the Committee.

Deputy Minister Holomisa confirmed that most comments had been of a general nature. He added that the Correctional Services Act was being reviewed as a whole.

Ms Mofokeng asked if the Department had a detailed plan for communicating the effect of the Bill to the relevant role players in Correctional Services.

Mr Van Wyk replied that the DCS had already communicated with the JCPS Cluster and the ministerial committee as well as the National Prosecuting Authority (NPA).

National Commissioner Fraser said that he took responsibility for the delay in the processing of the Bill. One reason was that there had been a 12-month period during which many important positions had been filled by acting officials. He acknowledged that this might not be an acceptable explanation.

The Chairperson said that this explanation was a cause for concern but it could not be given as a reason. He was tired of receiving bureaucratic responses to service delivery challenges. The role of the Portfolio Committee was to monitor outcomes and not the internal processes of the Department. The people were hungry for service delivery, not bureaucratic excuses. He said that a proper response would be expected before the Committee considered the DCS Budget Review and Recommendations Report (BRRR).

Cybercrimes Bill update
Deputy Minister Holomisa conveyed the apology of Deputy Minister of Justice, Mr John Jeffery, who was attending the Select Committee on Security and Justice meeting, and asked Mr Sarel Robbertse, Senior State Law Advisor: Department of Justice and Constitutional Development (DoJCD), to present the update.

The Chairperson recalled that the Bill had been passed by the National Assembly in November 2018. The National Council of Provinces (NCOP) had asked for some changes. The amendments had been accepted and the Bill now had to be presented to the National Assembly. Cybercrime was a burning issue and the Committee needed to know what was delaying this final step.

Mr Robbertse replied that the Bill had been approved by the NCOP in July 2020. Thereafter the  C-List of the NCOP proposed amendments and a D-List of these amendments incorporated into the Bill had been compiled by the Department to give effect to the NCOP recommendations. The C-List and D-List had been finalised on 9 and 19 October respectively. It had taken a long time because the Bill was complex. In addition, a large number of misprints and typographical errors had had to be corrected. An Afrikaans version of the Bill had also been prepared.

Dr Barbara Loots, Parliamentary Legal Advisor, confirmed that there had been glitches in the preparation of the D-List. For example, the word “fine” had appeared as “find” in some clauses, and clauses and sub-clauses were not correctly aligned.

The Chairperson asked if the misprints had been present when the NCOP had considered the Bill.

Dr Loots explained that the misprints had been introduced during the preparation of the C-List and D-List, after the NCOP had sent the Bill back for changes. The misprints were probably a result of miscommunication with the printing company, Creda Communications, that had prepared the C-List and D-List.

Mr Horn said that although the delays were frustrating, it was important to be certain of the integrity of the Bill presented to the National Assembly, and the explanation given should be accepted. However, given the risk of cybercrime, the importance of finalising the Bill could not be overstated.

The Chairperson asked what the next step was.

Mr Vhonani Ramaano, Committee Secretary, replied that the D version of the Bill had been circulated to Committee members. Once they had considered it, the Committee could formally adopt it.

The Chairperson said that the Committee would consider the Cybercrimes Bill on 4 November.

Committee programme
Mr Horn noted that no specific time slot had been set aside to engage the Minister on the state of the Department. Would the Committee do this when the Department presented its Annual Report?

The Chairperson suggested that the Committee reflect and make a decision the next day. He confirmed that the Minister must appear before the Committee before the adoption of the Budget Review and Recommendations Report (BRRR) on the 24 November. Were Committee members willing to extend the term until the 3 December?

Committee members indicated they were willing to extend the term.

The Chairperson asked if the three gender-based violence (GBV) Bills (Criminal and Related Matters Amendment Bill, Domestic Violence Amendment Bill and Criminal Law (Sexual Offences) Bill) should be considered separately or together.

Ms Mofokeng replied that the Committee should consider the Bills together as it had during the public hearings.

Mr Horn said that it would be important to clearly separate the consideration of the three Bills to ensure it was done systematically.

The meeting was adjourned.

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