The meeting dealt with three agenda items: further responses by the Department of Justice and Correctional Services (DJCS) and follow-up questions; deliberations on the Correctional Services Amendment Bill; and the Minister’s letter to the Committee.
In a virtual meeting, the Committee raised a number of concerns around the effect the Phaahla, Van Vuren and Van Wyk judgments had on the parole system. It asked how far the Department was in reviewing the parole system, and whether there was a possibility of unifying the three parole systems into one. It took issue with the reasons given for delay in the submission of profile reports, finding it shocking that such a big Department was understaffed in psychologists and social workers. It also found it appalling that the Department did not have its own drafting unit, despite its big budget. It called for the Minister and Commissioner to account for these failures in capacity at the meeting it had scheduled with the Minister after the State of the Nation Address (SONA).
It asked the Department to justify that its concerns were addressed in the proposed Bill. Although it found the Department’s responses satisfactory enough that the ANC and ACDP were able to accept the Bill as a reflection of the Constitutional Court judgment on Phaahla, it insisted that the Committee must see the regulations before they came into effect. It resolved to find a date to table the report and adopt the Bill, as per its Constitutional mandate.
The letter from the Minister requesting an additional two weeks to engage with the report on the investigation into the words spoken in Sesotho by the chairperson of the Audit Committee was found to be regrettable, as no reasons had been given for the request. The Committee also expressed concern that the National Commissioner had conducted the investigation when the Minister had seemingly undertaken to conduct it himself, and was in a position to explain what had been said. It reasoned, however, that it was not certain of the circumstances around the request, and would send a letter granting the extension with the reasons for its disapproval at having to grant it. Members did not see why the report could not be made available to the Committee in the meantime, and an offer was made to the Minister to come and present any thoughts he might have, should he so wish.
The Chairperson concluded the meeting with some administrative proposals around how the Committee could deal with sudden changes that might come up in the parliamentary schedule.
The Chairperson welcomed the Committee Members and all those present watching the meeting from home, and said that the meeting would begin by noting the apologies from the different political parties.
He said Ms J Mofokeng (ANC) was the chairperson of the Pension Fund, and would join late as she would be attending the Pension Fund meeting today. It had been brought to Parliament’s attention that about 20 Members of Parliament (MPs) and Members of Provincial Legislatures (MPLs) had recently passed away, and there was now a need to process the benefits of those MPs and MPLs. Ms Mofokeng would accordingly be joining the meeting late.
Adv G Breytenbach (DA) said that she would be joining the meeting very briefly, and then she would ask to be excused. Mr W Horn (DA) and Mr J Selfe (DA) would remain in the meeting, as she had other party commitments. She added that she did want to join the meeting for the discussion on the letter from the Minister.
Mr S Swart (ACDP) said he might have to leave early, but he would message the Chairperson to confirm.
The Chairperson accepted the apologies and moved on to the next item on the agenda -- responses from the Department to the Public Hearings.
Adv Breytenbach asked if she could interject, which was granted. She continued that if the Committee was not dealing with the letter from the Minister first, she would have to excuse herself and Mr Horn would speak on her behalf.
The Chairperson accepted this, and asked that the Deputy Commissioner begin.
DCS responses to public hearings on Correctional Services Amendment Bill
Ms Vuyi Mlomo-Ndlovu, Deputy Commissioner, DCS, presented the responses to the questions it had received as part of the public submissions, some of which had been raised in the public hearings that were held the day before. This included a question which was entertained in detail after the presentation by a representative from the Helen Suzman Foundation, as well as questions which the Chairperson said should be responded to today, that had been raised by the representative of the Foundation. She said that her colleague, Mr Jacques van Wyk, who had presented the day before, was also present to answer questions, but she would be making the presentation
African Criminal Justice Reform (ACJR: Dullah Omar Institute submission)
The Institute had posed two questions and made one prospecting statement, and the contents and responses were detailed on slide one of the presentation. They had particularly wanted information on the number of offenders who were sentenced for offences committed prior to 1 October 2004; how many offenders were due for parole consideration, and whether the dual parole system would continue in the foreseeable future.
The Department provided the figures and explained that the Phaahla judgment would continue into the future for as long as the DJCS had people brought to it who had been convicted for crimes before 1 October 2004.
Other questions dealt with statistics to do with those who stood to benefit from the Phaahla judgment. The statistics per province and overall, for those serving life sentences (lifers) were on slide two.
The presentation gave detailed figures on the determinate sentences per province and overall, that had been identified as qualifying for the Phaahla judgment on slide three.
Van Vuren cases
The presentation gave detailed figures per province on slide four as to how many cases were affected by the judgment, with the total number being 43.
Van Wyk cases
The presentation gave detailed figures per province on slide five as to how many cases were affected by the judgment, with the total number being 2 856. There were also cases that were in the process of quality assurance by the directorate responsible for the administration of profiles.
The total number of profiles due were 2 970; the profiles submitted for consideration were 2 282 and the backlog was 688.
Reasons for delays in submission of profile reports
- Social work report outstanding
- Psychologist report outstanding
- SAPS 62/69 or sentence remarks outstanding
- Confirmation of support system/address outstanding
- Victim participation in process
- Restorative justice process in progress
- Special remission of sentence granted in 2019
- Awarding of special parole dispensation in 2020
DJCS’s response to specific questions
How was the Phaahla judgment implemented, using the date of commission in the event, when multiple crimes were committed on different dates?
Ms Mlomo-Ndlovu used example warrants on slides eight and nine to explain how the Phaahla judgment would apply as per the date of sentencing for the crime. In the first example, she explained that since the date of committal of the crime in Warrant 2 had been 23 July 2017, Phaahla would not apply, whilst according to the date of committal of the crime in Warrant 1, which was 23 July 2003, Phaahla would apply.
The Helen Suzman Foundation had asked how the sentences would be calculated. This would be explained in the regulations so that there was no confusion as to which parole regime was to be followed in the case of multiple crimes, which also considered the court’s order.
Consideration of offenders who were 65 years old and above
The DJCS referenced section 73(6) of the Correctional Services Act (CSA), which detailed parole for such offenders.
How did the DJCS deal with the two parole regimes existing in the DCS?
The DJCS did not have control over the parole regimes, as the regimes had arisen out of the courts. Consideration about unifying the parole regimes was not really possible, as the DCS had to apply the law.
Ms Y Yako (EFF) asked the DCS if it felt that it had enough staff capacity to get through its backlogs. Secondly, she asked what its deadline was for the completion of backlogged cases so that it could begin moving forward.
Ms N Maseko-Jele (ANC) thanked DCS for the work done the day before and continuing into today. Her concerns were similar to Ms Yako’s. She felt that the reasons raised on slide seven, which addressed the reasons for the delay in the submission of profile reports, were not good enough. This led her to agree with Ms Yako, and ask whether the DCS had enough capacity to deal with backlogs. The issue of social workers reports also needed to be followed up on right away. She commented that the Committee was now in the second year of its term, and she did not want it to enter a new term with these issues remaining, so she emphasised the need for Department to make an effort to deal with them. It needed to have a plan to follow up on issues, and it should not be the case that anyone was idle when they came to work every day, so that when the DCS next appeared before the Committee, the list of issues would have been dealt with.
The Chairperson asked for clarity, saying his question did not differ from the previous two questions. He asked whether the psychologists and social workers fell under the control of the Department, or whether they were outsourced. If they were under the Department’s control, he asked why it had allowed the situation to devolve to this state. He asked who was responsible for the psychologists and social workers, as they had to do their work. Which of the Deputy Commissioners was responsible for overseeing the work, as that person must be held to account?
Deputy Commissioner Mlomo-Ndlovu acknowledged that the questions all had to do with backlogs. She asked the Committee to understand that there were various processes involved in dealing with the backlogs. The context was that cases started with the Case Management Committee, followed by the Parole Board. When dealing with lifers, their cases went to the National Council for Correctional Services (NCCS), and to the Minister via the NCCS. She did not want to appear as if she was defending the backlogs, but it had to be acknowledged that there had been a lockdown this year. With the lockdown, there were a number of activities that could not take place, including the Parole Board sessions. The DCS needed to come up with a strategy for reducing the population of correctional services facilities for the purpose of reducing the spread of the virus. A lot of effort had gone into brainstorming how to reduce the population, whilst also limiting the number of people coming into the system. Although the Parole Board meetings were affected, the need to reduce the population had caused the Department to review its risk-adjusted strategy. In this revised strategy, the Parole Board had been allowed to function at all levels, which had not been the case at all during the complete lockdown.
Psychologists and social workers
The reports given by psychologists and social workers were critical for the consideration of cases, and the Department faces the challenge of the shortage of psychologists. This shortage was recognised throughout the whole country, as most departments had posts that were not filled, even if those departments were financed. Since psychologists did not tend to stay within the field of psychology, DCS had acknowledged that it had to face this challenge.
Who was responsible for psychologists and social workers?
Psychologists and social workers were included in the DCS staff complement and worked for the Department full-time. They fell under the Incarcerations and corrections branch of the DCS. The post of the Chief Director, who was responsible for the psychologists and social workers, was currently vacant. Accordingly, there was a rotation of people who were acting in that post.
The Chairperson asked whether the Deputy Commissioner was saying that the lockdown was why there was a backlog.
Ms Yako said that she did not understand why the Department was not hiring social workers, as she knew many social workers were sitting without a job. The Department had to come back within a week’s time to explain its plan to get rid of the backlog, with timelines. They should leave COVID-19 out of its plan, because whatever plan it produced now had nothing to do with COVID-19 in her opinion, as COVID-19 would not impede on the DCS conducting interviews to fill vacancies -- if anything, it should accelerate the Department’s need to move forward with its three proposed parole regimes. She asked that a strategic plan with deadlines for completion be given to the Committee so that it could hold the DCS to account. As matters stood, she was not happy with the reasons for the delay.
The Chairperson noted that the Chairperson of the Sub-committee wanted to add something.
Mr Q Dyantyi (ANC) said that a date had been decided the day before, and should be diarised by DCS. Unfortunately, the date was not in a week or two’s time, as the Department was due to appear again before the Sub-committee on 5 March to present what it was calling the DCS’s interventions on the key failures of the Department. The Sub-committee would be providing a list of where those failures were, and include the issue of the backlog. The presentation should be focused, as the Committee had engaged with it on several instances and the Department had to come prepared to explain how it was turning the failures around. He said that DCS had a habit of speaking about a ‘turnaround strategy,’ but the Sub-committee had broken the issues down and moved away from a turnaround strategy to a list, identified since the annual report of 2019, of areas where the DCS was failing. On 5 March, it would appear to present on how it would be turning around each of those key elements. He asked that it start preparing today for that meeting.
Ms Cynthia Ramurikwa, Chief Deputy Commissioner (CDC), requested that the DCS be permitted to make additional submissions.
The Chairperson responded that the CDC would be able to make detailed submissions to the Sub-committee on correctional services. He felt it was important that the responses be properly considered and given to a Sub-committee which was more qualified in the area of correctional services. She would be given the dates to appear before the Sub-committee.
Deliberations on the Correctional Services Amendment Bill
He asked that the Committee move on to deliberations on the Correctional Services Amendment Bill. He asked whether Members felt that the Bill addressed the decision of the Constitutional Court.
Ms Mofokeng felt that of the presentations made on the Bill the day before, and said the Helen Suzman Foundation presentation had been very clear, and that the Bill was in line with the Constitution. If there was anyone else with another view, her view was that the Bill was compliant.
Mr W Horn (DA) thought that although one could say that from a rights-based perspective, the Helen Suzman Foundation’s proposal made sense, the Committee also needed to consider it from a practical perspective. When talking the Mr J Selfe (DA) earlier, he thought that if someone was convicted of a crime on the parole regulations applying earlier, a subsequent order would be dealt with by the first crime. Practically, this would mean that as a legislature, the country or the Department would be forced to turn a blind eye to subsequent crimes of the same nature. He felt that the Committee needed to think about this carefully.
In addition -- although this might be his fault -- he still did not really understand how both the Van Vuren and Van Wyk protocols were properly dealt with by the Bill. He asked for practical examples of how both of those regimes would be brought home in terms of the proposed amendment. This would help him to understand it better. However, in any event he understood the explanation given the day before to be a confirmation from the Department to the effect that it was confided that the implications of both judgments were covered under the proposed amendment, and that it would come back to the Committee formally on this point and possibly in respect of other matters raised.
Ms Yako asked the Committee to be patient with her, as she had just joined the justice portfolio and was not familiar with some of the wording, although she was learning. She asked about the practicality of advancing the Bills seeking to be passed. Using the Gender-Based Violence (GBV) Bills as an example, she said that although they could be passed, she wondered how practical it was to implement them to keep accountable those who needed to be held to account, and what the staff complement was in the Department. She insisted that she still felt that the Department was lacking in having a proper plan which took into account that things and times were changing, and that it had a concrete plan to take these realities into account. She would like to be invited to the Sub-committee meeting on 5 March to hear what plan the DCS had, to assure her as a South African citizen that everything was okay, and that lawmakers were making good decisions.
Although the discussions may now be about semantics, she asked whether the Department had thought about what would happen once these Bills were all implemented. She asked if the Bills were going to work and whether the Bills would mean anything. The whole reason why the Members were in Parliament was to make them mean something and to make them realisable.
Mr S Swart (ACDP) appreciated the Department’s efforts to bring the Bill into line with the Constitutional Court judgement, and the comments made about the lack of capacity. He said that the general views around parole should always be borne in mind, as well as the concern that was heard when dealing with other issues. He had even read in the media in the last few days of parolees who were again committing offences. This was a separate issue to be discussed on a separate date, along with the issue of capacity. He did not, however, foresee any major problems from his side. He appreciated what the other speakers had said, particularly about the unforeseen consequences, such as those that had been suggested by the Helen Suzman Foundation.
Ms Mofokeng said that Ms Yako should be invited to the Sub-committee, as the EFF should be represented and had never attended. She said that Ms Yako was welcome to the Sub-committee.
On the Bill, she felt that DCS should tell the Committee -- as it had said it would the day before --what its timelines were for when it was going to start looking at the rules and regulations. When the Sub-committee met with the DCS on 5 March, this guidance should be made available. She agreed with Mr Swart in saying that the parole system had been complained about for a long time, and the Committee needed assurances that the DCS was still going forward with the review of the parole system. Most of the challenges that were faced dealt with parole, and they needed to be looked at. One of the challenges was that there were many parole boards in each and every prison, and this could not be right. There should be a better mechanism so that there was uniformity. All of the programmes that existed were because of some of these challenges. Ms Yako was right in saying that the country could have Bills and everything else, but the implementation was a problem if it was not effective. Otherwise, she would support the Bill.
The Chairperson asked Ms Yako to get in touch with the Chairperson of the Sub-committee in order to attend the meeting. He thought that there had been changes to the representation within the EFF. As all parties were represented in the Sub-committee, Ms Yako and Dr M Ndlozi (EFF) could decide who would attend meetings. Even Members who were not members of the Sub-committee were free to attend the Sub-committee’s meetings.
Ms Yako said that as this was her main Committee, she would prefer to apply to the Chairperson of this Committee himself, that she only be an onlooker at the Sub-committee
The Chairperson said that the Committee was pleased to have her, and any Member of the Committee was welcome to attend the Subcommittee meetings.
Mr Selfe wanted to come back to the point made by Mr Horn concerning the proper interpretation of the Van Vuren judgment in particular. Mr Van Vuren, as far as he could read from the court judgement, was serving a life sentence for an offence committed before 2004. He argued that he should be eligible for parole in terms of what he called the ‘policy and guidelines’ that were applied by the former parole boards as of 13 November 1992. When reading clause 3 of the Bill, it said -- as far as he could tell -- that a person who was sentenced before 2004 (effectively) was subject to the policies and guidelines applied by the former parole boards prior to the commencement of the listed chapters. However, it went on in (b) of that clause, to say that in the case of a life sentence, this implied 20 years. This clause was not what his understanding of the Van Vuren judgment was, and he reiterated the point he thought that Mr Horn had made, that the Department needed to assure the Committee that the formulation of the Bill that was before it was appropriate to the exact provisions in the Van Vuren judgment.
The Chairperson asked the DCS to respond to the concerns raised by Mr Selfe and Mr Horn. He made the suggestion that notwithstanding the fact that regulations were delegated legislation by the legislature to the Executive, maybe the current law did not make provision for Parliament to approve the regulations as some other Acts did. However, because of the importance of these regulations, and the fact that the Act was brief and a lot of meat would be going into the regulations, which were delegated legislation, the Sub-committee and ultimately the Committee should have sight of what was going to be in the regulations before they were approved. The regulations dealt with very important issues, and the Committee would like to see the final product coming out of the regulations, as this may give it some assurances regarding some of its concerns. This did not take away from the questions and concerns raised by Mr Horn and Mr Selfe, however.
DCS’s follow-up responses
Mr Jacques van Wyk, Attorney for the DCS, greeted the Committee and explained that he was busy with a court matter at the moment, and was also juggling this meeting. The connection was not good when the Chairperson was speaking, and he apologised in advance if he made comments which were not necessary, or if he missed any issues raised.
Regarding the issues raised in this meeting and the one the day before about the various parole regimes, he would not go so far as to say that the regimes were completely created by court judgments. A parole regime was contained in the Act. The judgment had only interpreted how the Act was to be interpreted and the Act was to be applied. The gist of the Phaahla judgment specifically, if summarised in one sentence, was that the date of the commission of the crime or offence was used to determine which parole regime must be used. It did not change the parole regime, which was still the same as it was in the old Act and as it was in the new Act. The Van Wyk judgment also did not change the parole regime per se. It basically just said that in terms of the old Correctional Services Act 8 of 1959, offenders qualified for credits, especially lifers. In that case, the gist was that all lifers were supposed to receive full credits, as well as the reduction of remissions and special remissions. The old act mentioned 20 years and the new act said 25 years. He had spoken about this yesterday, saying that Van Wyk did not change the parole regime because the old Act said that lifers could be considered for placement on parole after serving at least 20 years. The current Act 111 of 1998 said 25 years. The parole regime therefore effectively provided the minimum term which must be served before an offender qualified to be considered for parole for the first time.
The Van Vuren judgment solidified the principle which existed in law, which said that the law that was applicable at the time of sentencing must be applied. In that instance, it was still the date of sentencing, because this case was long before Phaahla. The Van Vuren judgment said that the policies and procedures of the Department which applied, as well as the law which applied, at the time of sentencing must be applied. In that instance, it was about parole being only three years for a lifer, instead of being on parole for life. It did not change the parole regime in principle.
For those serving sentences, there were currently three parole regimes. It was actually two parole regimes, but the third one was the Van Vuren cases. In Van Vuren, those sentenced before 1993, if read together with the Phaahla judgment, it did not related to the date of sentencing, but to the date of the commission of the crime. It had changed to say that for those who committed crimes before 1993, one had to have regard for the law, policies and procedures that were in place at the time when the crime was committed. At that time, when offenders committed a crime before 1993, the law, policies and procedures stated that a lifer was meant to be on parole for a maximum of three years, and then they were done with their sentence. The law had changed after this to say that a lifer would be on parole for life. Phaahla had not changed this principle or parole regime. It only said that one should not have regard to the date of the sentence, but to the date of the commission of the crime.
This was what this Bill was doing, and what DCS was submitting was 100% covered in the Bill, which was flowing from the Constitutional Court judgment in Phaahla. The gist of the Phaahla judgment was that one must now have regard to the date of the commission of the crime, and not the date of sentencing any more, in order to establish which parole regime was applicable. That was all that the Bill was doing.
If this was related to the Van Wyk cases, which was about the deduction of credits etc, all the Van Wyk cases fell under the old Act, which said that lifers must serve a minimum of 20 years. The effect thereof was that it was no longer 20 years, but 12 years and 10 months when all credits and remissions from 2005 and 2012 were subtracted. The implication of Phaahla was that to establish whether an offender was a Van Wyk category case, one should look only at the date of commission of the crime, and not at the date of sentencing any more. Therefore, to establish whether someone was a Van Wyk case, one looked at the date of the commission of the crime. If it was committed before 1 October 2004, it would be covered, and lifers in particular would benefit from the Van Wyk judgment.
A single parole regime
To the question as to whether there could not be one parole regime, the DCS agreed that it would be fantastic to have only one parole regime. It would stop a lot of chaos and create more certainty. However, this was not possible, as they all knew that the rule of law and the principle of legality was very clear, and it was mentioned in the Phaahla judgment that one had to have regard for the least punitive measures if the law had changed from the date of commissioning of the crime until the date of sentencing, and this was what was being done. A further principle in South African law was that in these instances, one must have regard to the law on the date that an offence was committed. The DCS could not change what the Act physically said in 1980, for example, and it could not be changed retrospectively. For example, if someone committed a crime on 1 January 1993, one had to have regard to the law, policies and procedures that were applicable on that day. If it was a lifer, it would simply mean that the defendant would qualify for parole after serving 20 years, though there were a few other changes at the time which he did not need to go into.
Helen Suzman Foundation
The DCS was of the firm view that an Act was mean to solidify and provide legal certainty with regards to legal principles in law. How those principles were to be applied and implemented spoke to the procedures. The DCS submitted that this should be a matter contained in the regulations. This was because if one had to have regard only for the multiplicity of offences for which one was convicted in once sentence, or an offence that was continuous in nature, like theft, the DJCS had concurred that the earliest date must be used. This was not a principle, however, as the principle was ‘the least punitive measure.’ This principle was contained in the Bill in saying that it was no longer looking at the date of sentencing, but at the date of commission of the crime.
The question then arose as to what the date of the commission of the crime was. The DCS submitted that that was a procedural question in nature which also required certainty. Delegated law was secondary law which formed part of the law. DCS felt that the question need not be answered in the Act itself, but could be contained in the regulations which would still be interrogated and go through public scrutiny. There would still be accountability and transparency.
Review of the Act and Regulations
The DCS had started reviewing the Act and its regulations at the end of 2019 by obtaining inputs from relevant role-players internally. It was busy with a discussion document at present. It was feverishly busy, even from home, with the issues of legislative review. As he had explained yesterday, one of the priorities for the Department was parole legislation and regulation. What would happen was that the policies and procedures currently contained in its internal directives would be contained in the regulations. There was already a draft parole Bill that the Department was busy with, which had not been submitted anywhere as it was still busy with it, although it was drafted some time ago. It was still busy considering certain ideas, such as whether parole should form separate legislation outside of the Correctional Services Act, or whether it should fall within the Correctional Services Act. It had not made a final decision on this, but the inclination was that it should remain as part of the Act and not as its own separate Act, with there being more legal certainty in the regulations.
There were timeframes which the DCS was working on. Firstly, it would like to table the regulations by next year if it was possible, because it was busy reviewing the Act and the regulations, especially regarding parole. The goal was that the discussion document on certain critical areas within the Act and regulations that were under review would be ready for circulation by the end of March 2021. The people who were dealing with this were doing so on an ad hoc basis. It was making sure that it dealt with the regulations as soon as possible, but there were a number of other issues. It wanted to make sure that the principles were catered for in the Act, and the policies were covered in the regulations. He felt that he had covered everything, but asked if there was anything he had missed.
The Chairperson thanked Mr Van Wyk, and said that he had perhaps not heard that the Committee would like to see the regulations before they came into effect, as the meat of the Bill was in the regulations. The Committee would like to give input before they came into effect. He continued that the nation needed a transparent process that was thoroughly explained. He thought that the principle of transparency was very important, and that this may be something the Sub-committee would consider.
Mr Horn said that in respect of the date of commission, he noted the developments on the “Chat.” The suggestion that the matter be specifically set out in regulations was not one that he thought the Committee would object to. Even though he did not think that the Chat was meant to form part of Committee proceedings, it was clarified by the Helen Suzman Foundation in the Chat that they had referred only to multiple crimes which were being dealt with by the National Prosecuting Authority (NPA) in one prosecution, and not necessarily subsequent crimes. In this sense, he thought the Committee and Department understood one another. He thought Mr Selfe might respond in respect of the Van Vuren and Van Wyk judgment issue.
The Chairperson said with respect to the Zoom Chats, he thought that a ruling by the Chairperson on the status of Chat contributions would be of no significance, because people just read them. He thought that the Chats enhanced the quality of the discussions, recalling that when the Committee was dealing with the GBV Bills in public hearings, there was a lot of interaction between the Committee and the public in the Chats. It was one of the issues that the Rules Committee may want to deal with at some point. For now, until there was a specific rule that said that they should not be considered, he thought the Chats enhanced the quality of its discussions, with some of the information received on them empowering the Members to make informed decisions. He noted that Mr Horn had made some of his input based on the Chats, so if he were to say they were not to be included would be neither here nor there.
Ms Catherine Kruyer, Legal Researcher, Helen Suzman Foundation, had said on the Chat:
“Dear Honourable Horn. Multiple crimes refer to convictions for multiple previous or concurrent crimes in a single hearing. It does not refer to additional crimes committed after conviction and sentencing.
“The HSF would be happy for the date of commission in respect of multiple and continuing crimes to be clarified in regulations. Thank-you.”
Mr Selfe said he was partly covered by Mr Van Wyk’s response. A lot would depend on what came out of the regulations as well. He really wanted to deal with the question of regulations, and had been trying to find the requisite provision in the Correctional Services Act, However, as he recollected, regulations promulgated by the Minister or the Department had to be approved of by this Committee. He very strongly supported the retention of that provision in the new legislation for the reasons which had been alluded to -- that regulations had the status of law, and the law should be properly scrutinised. He could not find exactly where it was contained in the Act, but he felt that it should be retained in the Bill.
Ms Mofokeng thanked Mr Van Wyk for his response, saying that it confirmed what the Committee was saying about the parole boards and many regimes. She asked the Chairperson if the question she asked yesterday regarding how many offenders who fell under the category of the Van Wyk judgment were currently still incarcerated, had been answered before she entered the meeting.
The Chairperson confirmed that DCS had given an answer. However, he asked that the presentation be shared with the Committee Secretariat so that it could be circulated to Members.
Mr Selfe found the provision in section 134(5) of the Correctional Services Act, which said that the Minister must refer proposed regulations to the relevant parliamentary committees in both Houses dealing with the Department. He did not know whether this ordinarily happened, but he felt it ought to happen and that it should happen going forward.
The Chairperson said that generally there had been no objection to the fact that the Committee wanted to see the regulations, and it in fact insisted that it wanted to see the regulations as they were the meat of the legislation. The Committee would like to see them before they were operationalised. Given the fact that all of its concerns had been clarified, he asked Members if the DA and EFF supported the Bill in its current formulation. So far, the ANC and the ACDP supported the Bill.
Mr Horn said the DA reserved its position on the Bill, as it needed to caucus on it first.
Ms Yako said she needed to consult with her colleagues, as she was not the main Member of the Committee. Personally, she had a few concerns that she had pointed out, but she had no issue with the gist of the matter.
The Chairperson said that the programme would be looked at in order to set a date for the adoption of the report and final adoption of the Bill, so that it could go to the National Assembly to be debated on the targeted date of 23 February. This was also to ensure that the National Council of Provinces (NCOP) had enough time to debate the Bill.
He thanked the DJCS for its hard work, but expressed grave concern as he knew the Minister’s staff were present in the meeting, and despite the fact that it had been a fully fledged Department for many years, it somehow still did not have a drafting unit. This was a R26 billion Department, and drafting was meant to be a core function. This was extremely unfortunate. South Africa was a nation under reconstruction and development. Quite a large amount of apartheid legislation needed to be redrafted and overhauled, yet the Department was dealing with this on an ad hoc basis. This was totally unacceptable. He did not understand what had been happening over the last few years, so that it had overlooked its drafting capacity.
He thanked the presenters and said that when the Minister came to present after the State of the Nation Address (SONA), the Committee would like answers from the Minister and the Commissioner as to why the DCS did not have the requisite capacity, despite having such a big budget.
Mr X Nqola (ANC) said that the tone which the Chairperson had just employed in his closing remarks should be the backbone of the meeting on 5 March.
The Chairperson thanked Mr Nqola.
The Chairperson asked Members what their feelings on the revised programme were.
Mr Horn thanked him for the new programme, as it now better reflects the priority issues identified by the Committee, and would enable it to fulfil its role better.
Ms Mofokeng agreed with Mr Horn.
Ms Maseko-Jele thanked the Chairperson and the Committee Secretariat for the work done in redrafting the programme, and she supported it.
Mr Swart supported the programme.
The Chairperson commented that the programme was adopted.
He added that although the schedule was set, the parliamentary schedule changed quite often and for Committees that have paced schedules, having the schedule set off by one or two days could have a serious impact. One of the ways the Committee was going to try and address the potential programme changes was that on days where there was no voting in the House, or where the Justice cluster was not answering questions, the Committee would ask to be excused to sit and finalise some of its matters.
He felt that this term was the most important term for the Committee for this whole year, as it needed to complete the GBV Bills. It had already dealt with the Correctional Services Amendment Bill and it still needed to conclude the issue on the South African Human Rights Commission (SAHRC). He said that in the next term, though the budget would be being dealt with, the Committee would also be giving attention to Correctional Services, as it owed it a lot of time. The first two weeks of the next term would be for Correctional Services.
He proposed a change of focus on how it dealt with Correctional Services and Justice, as assigning just Fridays would not be sufficient for Correctional Services. It was generally astonishing that there could be a department as big as the DJCS, which did not have a drafting section. Work seemed to come mainly from the Justice side, but a critical planning session was needed to consider how to ensure that that it did not limit attention to Correctional Services by focusing only on where the work was coming from.
Letter from the Minister
The next item was the letter from the Minister, which had been circulated to Members.
The Chairperson acknowledged that there was a situation with the chairperson of the Audit Committee, and this Committee had asked that there be an investigation by the Minister as to whether the chairperson had said the words attributed, or whether those words were directed to the Members who were serving on this Committee. In a letter of response, the Minister had requested more time. He had received the report on 28 January, and he was still interacting with the report. This letter had been circulated to all the Members. He asked Members if they had any further comments on the letter.
Mr Horn said that he did not think this was a healthy situation. Firstly, the amount of time that it had taken for the investigation to take place and for this Committee to receive a report on it, was sufficient. As the Committee recollected, the Minister had said he would dealing with the investigation himself, and yet he had now appointed the National Commissioner to conduct the investigation, specifically given the fact that the circumstances indicated that he would be somebody who could personally shed light on what transpired on the day, due to the fact that the chairperson of the Audit Committee in one of her versions of the event, had indicated that she was speaking to him whilst she was speaking Sesotho. In addition, the Minister said in his letter that he had received the complete report. He did not understand why the Minister needed two additional weeks to engage with the report. It was his view that the report should be filed with the Committee without further delay, and if the Minister had a specific view on the outcome of the report, he could share that with the Committee as well. It was not a proper process, and with the greatest of respect, it raised a few questions as to what the ultimate outcome would be within two weeks after the Minister had, as he put it, engaged with the report. It was his view that the report be filed with the Committee immediately, and the Minister should be given the opportunity to give his view in addition to the report if he so wished.
Mr Swart agreed with Mr Horn, saying it was regrettable that extra time had been asked for, given the fact that he thought that extra time had been given when it was initially discussed. The Committee had wanted a response by the end of December or the middle of January, and they had extended this until the end of January. He felt that the Committee should be given the report as soon as possible, and recalled the National Commissioner specifically saying that he had no jurisdiction over the Audit Committee chairperson. He appreciated the fact the Minister may want to hear what the National Commissioner’s involvement was, and that it may not necessarily be the National Commissioner’s report, but he found it regrettable that the Minister was asking for more time and the Committee possibly needed to be firmer in this regard.
Ms Mofokeng said that although she understood the perspectives of her colleagues, she noted the paragraph where the Minister phrased the request for more time as a request which the Committee could accept or deny. She felt he had erred in not giving a reason for the request. She thought that two weeks was not long, and that the request should be granted, as the Committee did not know the reasons for the request. On the points made about the Commissioner, she had also wanted to raise the point as to why the Commissioner had been given the responsibility. She speculated that the Minister had realised this and decided to give the responsibility to somebody else. The Committee did not know the terms of reference for the request, and so she would want to give him the extension.
Mr Dyantyi said that he was covered by Ms Mofokeng.
The Chairperson summarised the two views as being no extension being granted, against the view that although the concerns raised by Mr Swart and Horn were reasonable, the extension should be granted. He asked the Members to deliberate on the two views.
Mr Swart suggested that a letter be sent to the Minister saying that it was regrettable that the extension was requested and that no reason had been given, but it would grant the request as he was not opposed to the granting of the extension.
The Chairperson asked if Members agreed that Mr Swart’s proposition bridged the two perspectives.
The Committee agreed.
The Chairperson said that the Committee had decided to deal with minutes before meetings, and asked the Committee Secretariat why the minutes were not ready for proposal and adoption.
The Committee Secretary said that the process was lengthy, in that minutes had to go from him to Ms Christine Silkstone, the Committee Content Adviser, for quality assurance, followed by the Chairperson, before they could be presented to the Committee for adoption.
The Chairperson said that there had been times when this process was not so lengthy, and recalled that the Committee regularly corrected minutes before adopting them. He asked that it not be the case again that minutes were not ready for adoption before the start of the meeting, and asked that the Committee Secretariat ensure that minutes were sent to Members the night before they were due for adoption.
The Committee Secretary agreed.
The meeting was adjourned.
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