Information Regulator: shortlisting; Justice Portfolio Audit Outcomes; DCS & JICS 2020/21 Annual Report; with Minister & Deputy Minister
Justice and Correctional Services
09 November 2021
Chairperson: Mr G Magwanishe (ANC)
In this virtual meeting, the Committee received briefings on the 2020/21 audit reports of all Justice portfolio entities and, following a political overview by the Minister, briefings on the 2020/21 annual reports of the Department of Correctional Services and the Judicial Inspectorate for Correctional Services. The Committee also agreed on a shortlist for the vacancies arising at the Information Regulator.
The Auditor-General reported that the Department of Correctional Services (DCS) had received an unqualified audit with findings – an improvement over 2019/20, when it had received a qualification due to inaccurate financial reporting. The findings related to non-compliance with legislation, particularly in relation to procurement and contract management. DCS had incurred irregular expenditure of R1.41 billion (a 35% increase over 2019/20) and fruitless and wasteful expenditure of R1.13 billion (a 93% increase). Auditors linked these to a lack of effective consequence management at DCS – over R5.5 billion in irregular and fruitless expenditure from prior years had not been investigated.
The Department of Justice and Constitutional Development (DOJCD) had received a qualified audit with findings, as in the previous year. The financial qualification related to the misreporting of contingent liabilities. DOJCD had incurred R401 million in irregular expenditure (a 28% decrease from 2019/20), and R24 000 in fruitless and wasteful expenditure. It also had unreliable performance reporting, shortcomings in consequence management, and material findings in supply chain management.
Seven other entities in the Justice portfolio had received a clean audit. These were the Special Investigating Unit, Legal Aid South Africa, the Justice Administered Fund, the Guardian’s Fund, the President’s Fund, the Public Protector, and the Office of the Chief Justice. However, the Auditor-General flagged some problems – both in performance reporting and in compliance – at the South African Human Rights Commission, which had received an unqualified audit with findings.
The Committee was deeply unhappy with the performance of DCS and DOJCD in the audits. It was confused about how DCS’s audit outcome had improved while it was evidently in such poor condition, and Members of the Subcommittee on Correctional Services committed to considering drastic action that could be taken at DCS. They were also concerned about the role played by external consultants in the improvements in DCS’s financial reporting. In regard to DOJCD, the Committee was frustrated by DOJCD’s repeated finding on contingent liabilities, as well as by the persistence of other longstanding problems such as senior vacancies and delays in consequence management. Discussion of the recent cyberattack at DOJCD led Members to reflect on the utility of the audits, given that IT security was another issue that the Auditor-General had repeatedly flagged at DOJCD in the last decade, apparently to no effect. The Committee was also dissatisfied with the Auditor-General’s briefings, saying that in future it wished to receive more specific and more substantive recommendations for interventions that could be made.
In his political overview to the annual reports, the Minister said that, despite the COVID-19 pandemic and other persistent challenges, the decline at DOJCD and DCS had been arrested. In 2020/21, DOJCD had achieved 67% of its performance targets, and DCS had achieved 70%. It was the first time in four years that DCS had received an unqualified audit. The Minister discussed the Ministry’s plans to reform the administration and pursue modernisation at DOJCD, and its plans to improve consequence management and compliance at DCS.
His remarks received a lukewarm reception from the Committee, with the DA lambasting them as superficial and dishonest. Among other things, Members asked the Minister about the remaining senior vacancies, consequence management, whistleblower protection, and the recent cyberattack at DOJCD. The Committee was also unhappy that the Minister had not yet met with the Auditor-General about the audit reports.
DCS reported that in 2020/21 it had achieved 38 of its 54 annual targets (70%). Most of the targets it had not met were in its administrative programme, and it attributed much of the underperformance to the effects of the COVID-19 pandemic. As of 31 March 2021, correctional centres were at 126% capacity, with 140 498 inmates across 110 836 beds. DCS had spent R25.03 billion of its R25.6 billion budget allocation (97.8%). It had severely underspent in payments of capital assets, but had overspent on employee compensation, partly due to the payment of additional allowances.
In their discussion with DCS, Members continued on the same themes of underperformance, non-compliant supply chain management, and ineffective consequence management. They asked DCS to account for its irregular expenditure and to provide credible plans for improvement. Members also asked about DCS’s IT infrastructure projects, the number of foreign nationals in DCS facilities, the COVID-19 vaccination rate at DCS, and the increased number of escapes from correctional centres in the year under review. The Committee asked DCS to submit a list of all officials who had failed to disclose their financial interests or to sign performance agreements, as well as a list of all officials against whom there were pending disciplinary charges. From now on, the Subcommittee on Correctional Services would follow up on DCS disciplinary processes on a quarterly basis. The Chairperson also impressed on DCS the Committee’s firm expectation that DCS should receive a clean audit in 2021/22.
Reporting for the Judicial Inspectorate of Correctional Services (JICS), the Inspecting Judge told the Committee that South Africa was failing to meet its constitutional obligation to provide conditions of detention consistent with human dignity. He was concerned about sexual violence; the number of remand detainees who could not afford bail; inadequate parole, especially for prisoners serving life sentences; and the increases in segregations, uses of force, hunger strikes, and attempted suicides in DCS facilities. JICS reported on its activities in 2020/21, including the 64 investigations it had conducted and the 340 complaints it had received. It had inspected 136 of 235 active correctional facilities, and had rated 12 (8.8%) unsatisfactory. It also presented DCS’s mandatory reporting figures, though it was concerned that the mandatory reporting system was dysfunctional and that figures were often underreported. In 2020/21, JICS had underspent by R5.3 million (7.1%) on its R74.5 million budget. In the first two quarters of 2021/22, however, it had spent or committed R40.4 million (53%) of its R76.1 million annual budget, overspending on some items. It reported that to become an autonomous component of national government, as it hoped to, it would require a budget allocation of R113.2 million in 2022/23 – an increase of about R37.1 million (49%).
The Committee complimented JICS on its diligence and efficiency, with the Chairperson commenting that, when working with entities that were well managed on the operational level, the Committee was able to attend to longer-term strategic and doctrinal considerations. In this vein, the Committee proposed to hold a workshop to discuss the broad approach to such issues as remand detention, conditions in correctional facilities, and the politically difficult reforms recommended by the Inspecting Judge, including revisiting minimum sentences and abolishing drug offences. Additionally, in the next year or so, the Committee would have to coordinate the legislation – both the JICS Bill and amendments to the Correctional Services Act – emanating from the Constitutional Court judgement on JICS independence. Members also asked JICS about overcrowding and how to stem suicides and the use of force in correctional facilities.
The Committee agreed to its shortlist for the four appointments it had to make at the Information Regulator. The shortlist comprised eight candidates (three of whom were incumbent members): Adv Pansy Tlakula, Adv Johannes Collen Weapond, Mr Ezra Pillay, Dr Sebolawe Tladi, Adv Lebogang Stroom-Nzama, Mr Mfana Gwala, Prof Jacobus Van Rooyen, and Ms Anchal Baniparsadh. Interviews would be conducted soon, so that the Committee’s final nomination could be sent to the House for approval before the end of the Information Regulator’s term on 30 November.
Finally, the Committee agreed in principle to conduct its first oversight visits in early 2022. It also agreed tentatively to look into holding public hearings for the Land Court Bill before the end of the year.
Opening remarks by the Chairperson
The Chairperson welcomed Members back to Parliament. Like the local election campaigns that had just concluded, the fourth parliamentary term was going to be “gruelling.” The Committee’s programme for the next five weeks was packed. He had heard that Parliament might rise on 14 December, rather than on 10 December as scheduled, and he asked the Committee secretariat to find out whether that was correct.
He led Members in observing a moment of silence in memory of Ms Theresa Ross, Principal State Law Adviser, Department of Justice and Constitutional Development (DOJCD), who had died during the recess.
The Chairperson warned that he would be facing loadshedding during the meeting. He asked whether other Members were expecting loadshedding.
Adv G Breytenbach (DA), Mr S Swart (ACDP), Ms N Maseko-Jele (ANC), Mr R Dyantyi (ANC), Mr W Horn (DA), and Mr X Nqola (ANC) all said that they expected to be loadshed during the course of the meeting.
The Committee also noted an apology from Adv Swart, who had to attend a Programming Committee meeting, but who was attending the beginning of the current meeting because of the importance of the Information Regulator (IR) appointments.
Mr Horn referred to loadshedding as his “appointment with Eskom,” for which the Chairperson, Mr Dyantyi and Mr Nqola light-heartedly chastened him.
Information Regulator (IR) vacancies: Shortlisting
The Chairperson said that because the parliamentary programme had been changed to accommodate the local elections, the Committee was running out of time to fill the vacancies at the IR. The Committee had to have its nominations approved by the National Assembly (NA), and assented to by the President, by 30 November, when the current members’ terms ended. Parliament had to avoid a situation where even a day passed without the IR fully staffed. The Committee would do its best to prepare to submit its nominations to the NA in the first sitting after the Medium-Term Budget Policy Statement.
He said that there were two preliminary points that the Committee needed to agree on before drawing up the shortlist. First, given that four vacancies were arising, what were the minimum and maximum number of candidates that the Committee ought to interview? Second, over how many days should the interviews take place? The current proposal was to conduct the interviews over two days, because the Committee had received feedback that the 2019 interview schedule had been too packed, resulting in the Committee meeting late at night. He assumed that the interviews would be conducted virtually.
Adv Breytenbach said that two days of interviews was reasonable. She suggested that a shortlist of eight candidates would be sufficient for the four vacancies, given that some of the current members of the IR would probably be reappointed.
Ms Maseko-Jele agreed, although she wasgoing to suggest a shortlist of twelve candidates. She asked whether Members should ask the candidates different questions on each of the two days of the interviews.
The Chairperson replied that the Committee always asked the same questions of all candidates – including during the interviews for Human Rights Commissioners, which had also been conducted over two days. Members could add different spins to the way they asked their questions, but the substance of their questions should not change.
Mr Dyantyi agreed with Ms Maseko-Jele that a shortlist of twelve candidates would be appropriate. Eight candidates would be acceptable, but not fewer than eight.
The Chairperson suggested that the Committee should provisionally seek a shortlist of eight candidates, but could add further names if a Member felt strongly that another candidate should be included. The maximum number of candidates would be twelve.
Adv S Swart (ACDP) agreed.
The Chairperson said that Members had received a letter alerting them to the fact that one of the current members of the IR, Professor Sizwe Lindelo Snail ka Mtuze, had withdrawn from the application process. In his withdrawal letter, he had raised various issues that the Committee had to discuss at some point, either late this year or early next year. His letter suggested that there were challenges at the IR that had to be attended to. He asked Members to suggest which candidates should be shortlisted.
Ms Maseko-Jele nominated Adv Pansy Tlakula, the current chair of the IR. She had already been screened.
The Chairperson said that he had forgotten to explain that all the candidates had already been screened. This had been necessary because the Committee had been refused permission to sit during the recess to shortlist candidates – it would have delayed the appointment process to begin screening candidates only after the end of the recess. The screening process had found issues with only three candidates: Professor Snail had received a R300 fine ten years ago, Adv Fezeka Magano had a bond-related issue, and Adv Johannes Collen Weapond also had an issue. However, Adv Weapond’s phone number appeared to have been cloned, so the issue had not been followed up on yet.
Mr Dyantyi supported the nomination of Adv Tlakula, and nominated Adv Weapond.
Adv Breytenbach nominated Mr Ezra Pillay.
Mr Horn nominated Dr Sebolawe Tladi.
Adv Swart supported the nomination of Adv Tlakula.
Mr Nqola nominated Adv Lebogang Stroom-Nzama.
Dr W Newhoudt-Druchen (ANC) supported the nomination of Adv Tlakula, Adv Stroom-Nzama, and Adv Weapond.
The Committee took a two-minute break to allow the Committee secretariat to display the list of the twenty-eight candidates from which the shortlist was being selected.
Mr Dyantyi nominated Mr Mfana Gwala.
Adv Breytenbach nominated Prof Jacobus Van Rooyen.
Mr Dyanti supported the nomination of Prof Van Rooyen.
Mr Nqola supported the nomination of Mr Gwala.
Adv Breytenbach nominated Ms Anchal Baniparsadh.
Mr Dyantyi supported the nomination of Ms Baniparsadh.
The Chairperson said that the Committee now had a shortlist of eight candidates, and asked whether Members thought that sufficient.
Adv Breytenbach, Mr Nqola, and Ms Maseko-Jele said that it was.
The Committee agreed to shortlist Adv Tlakula, Adv Weapond, Mr Pillay, Dr Tladi, Adv Stroom-Nzama, Mr Gwala, Prof Van Rooyen, and Ms Baniparsadh.
The Chairperson said that it was possible that interviewing these eight candidates might not take two full days. He proposed that, if that was the case, the Subcommittee on Correctional Services should be permitted to meet in whatever time was left over. In devising its programme, the Committee had tried very hard to schedule sufficient time for Subcommittee work, but the unavoidable Budgetary Review and Recommendations Report obligations had made that difficult.
Adv Breytenbach said that two of the shortlisted candidates were current members of the IR, and the other six were good, well-qualified candidates. Thus, if Members were disciplined, and worked out their questions in advance – she suggested that this should be done informally, outside the Committee’s meetings – and if the interviews started early in order to end at a reasonable hour, there was no reason that the interviews could not be done in one day. Then the entirety of the second day could be dedicated to Subcommittee work.
The Chairperson replied that in fact the shortlist included three incumbents: Adv Tlakula, Adv Weapond, and Adv Stroom-Nzama. He agreed that that should shorten the process. He suggested that any time left over on the second day – whether that ended up being the full day or slightly less – should be dedicated to Subcommittee work. The Committee would try to finish the interviews in one day.
Mr Dyantyi agreed that it should be possible to finish the interviews in one day. He said that Adv Breytenbach was clearly finished with election campaigning and focused on the Committee’s work.
The Chairperson said that perhaps the Committee would finish the interviews in the first day, and in the second day Members could adopt the Committee’s report, so that the nomination could go to the House as soon as possible. Then the Subcommittee could use the rest of the day for its programme.
The Chairperson said that another question about the Committee programme was whether it should hold public hearings on the Land Court Bill or the Prevention and Combating of Hate Crimes and Hate Speech Bill in the current term. He asked the Committee secretariat for an update on the number of submissions received on the Hate Speech Bill.
The Committee Secretary said that there were 108 000 submissions, but only 28 substantive submissions.
The Chairperson said that he had heard that Parliament might rise on 14 December rather than 10 December as scheduled. If that was true, the Committee could use 11 and 12 November to hold public hearings on one of the two bills. The Committee would then be closer to beginning to process both bills next year.
He also had another proposal regarding the programme. Throughout the year, the Committee had received many complaints, some about the infrastructure in the courts. One morning, he had been woken up by Adv Breytenbach, who had been very angry about some “disturbing” photographs she had received of infrastructure in Limpopo. To him, this was an indication that, when the Committee returned in 2022, it needed to hold “serious” oversight visits. As Adv Swart knew, in this Committee it was possible to spend Parliament’s entire five-year term dealing with legislation, without making any oversight visits. He proposed that the Committee should start working now on the content and logistics of an oversight trip, which could take place in the fortnight before the 2022 State of the Nation address. Members could suggest any focus areas that they thought the Committee should cover in those visits.
Adv Breytenbach strongly supported this proposal – oversight visits were essential and long overdue. There were many issues that the Committee should cover, including the state of the court infrastructure. The Committee should also visit at least some Offices of the Master of the High Court. The Master’s Office was in “complete and utter disarray” – she did not think Members had any conception of what was happening there, and they needed to find out, so that the Committee could start holding people accountable. Finally, she suggested that the Committee should include correctional services and correctional facilities in its oversight visits. There were serious issues in correctional facilities. She thought that the Committee had last done an oversight visit in a correctional facility was four years ago, in the last Parliament, and at the time she had thought that the conditions constituted human rights violations. She was sure that nothing had been done to improve the situation since then – in fact, she was sure that conditions had deteriorated significantly.
Mr Dyantyi also supported the proposal. In his understanding, this trip would be about “integrated oversight” – the Committee could engage with issues relating to integrated justice services. He suggested that a draft programme should be prepared in the next few weeks, so that the Committee could adopt it before Parliament went on recess.
Dr Newhoudt-Druchen said that a court in Swartland – possibly Malmesbury Magistrates’ Court – had burned down. Perhaps the Committee could visit to see how the court would rebuild and recover. Also, since the gender-based violence bills had been processed, the Committee could do oversight of the victim support rooms in courts, ensuring that conditions such as confidentiality and safety were being adhered to.
The Chairperson agreed with Mr Dyantyi that on 10 December the Committee should receive a draft programme for the trip. Thereafter, the thematic focuses of the trip would be settled, and the secretariat could work on the logistics of the visits. Until then, Members should feel free to contact the Committee secretariat and research unit, so that the programme would be compiled with their input. He knew that Dr Newhoudt-Druchen was passionate about the Thuthuzela Care Centres. The Committee did indeed need to focus on integrated oversight, as an alternative to taking a separate oversight trip for the Subcommittee on Correctional Services, which would be very expensive.
Adv Breytenbach suggested that splitting the Committee into separate groups would be one way of covering as much ground as possible during the visits.
The Chairperson agreed. That was a logistical issue, but there was the option of splitting the Committee into two groups – provided, he joked, that Adv Breytenbach and Mr Dyantyi were not in the same group.
Adv Breytenbach joked that Mr Dyantyi would not survive.
Ms Maseko-Jele asked whether the Committee would arrive for oversight visits unannounced, or whether it would make appointments in advance. She had never been on an oversight visit.
The Chairperson replied that that was another logistical issue. Since it was the Committee’s first oversight visit, it would probably notify the sites in advance. However, the Committee should conduct both announced and unannounced oversight visits. In late 2019 or early 2020, Adv Swart had suggested that the Committee should make night-time visits to correctional facilities, especially in the area around Cape Town, where, fortuitously, several Members lived. The Committee had agreed that such visits should be part of its continuous oversight activities, but the suggestion had never been implemented.
The Chairperson said that, given the number of submissions received, it might not be feasible to hold only one or two days of public hearings on the Hate Speech Bill – the hearings might generate a lot of interest. Perhaps the Committee should hold public hearings for the Land Court Bill first, and deal with the Hate Speech Bill in 2022.
Adv Breytenbach agreed that the Hate Speech Bill would be very controversial and generate many differing opinions. One or two days of hearings would not be sufficient to attend to all the issues, so it would be more efficient for the Committee to deal with the Land Court Bill in the current term and deal with the Hate Speech Bill in 2022.
The Chairperson said that the Committee would look into the number of submissions received for the Land Court Bill and the feasibility of holding those hearings in the current term. The Committee should “do things right”; it should not hold hearings just to fill space in the programme. Members would receive an update on the Committee programme once the Programming Committee had confirmed the parliamentary programme.
Ms Maseko-Jele noted that the Committee secretary had said in a written chat message that some of the 108 000 submissions on the Hate Speech Bill were duplicates. That implied that the actual number of submissions would not be clear until the duplicates had been removed.
The Chairperson replied that that was why the Committee secretary had specified that only 28 of the submissions were substantive. However, it was difficult to predict how much interest public hearings would generate – the Cannabis for Private Purposes Bill, on which the Committee had held public hearings in the previous term, had demonstrated this. The Committee had to solicit oral submissions long in advance, so that the consultation process was not considered a “sham.”
The Chairperson concluded that the Committee would update Members on the programme. It did not change much if Parliament’s closing date was 14 December, rather than 10 December – 11 and 12 December were a weekend, so Parliament would effectively only gain one additional working day.
He added that Members would soon receive copies of the Traditional Courts Bill and the external legal opinion that the Committee had solicited on its contents. Whether or not the Committee ultimately decided to support that Bill, it should begin the relevant process before the end of the year.
Auditor-General briefing: DCS Audit outcomes 2020/21
Mr Lourens van Vuuren, Business Unit Leader: Correctional Services Portfolio, Office of the Auditor-General (AGSA), introduced the Committee to the auditing process and the roles therein of AGSA and the Committee. The AGSA team would discuss the Committee’s two portfolios in turn.
Mr Theunis Eloff, Senior Manager, AGSA, said that the audit outcomes of the Department of Correctional Services (DCS) had improved in 2020/21. It had received a financially unqualified audit with findings, as opposed to a financially qualified audit with findings in 2019/20. DCS had been selected for material irregularity implementation, but no material irregularities had been identified to date. More specifically, the audit had found:
• Improved credibility of financial reporting;
• Improved credibility of performance reporting; and
• Continued difficulties in compliance with legislation.
Mr Mojalefa Deane (spelling unconfirmed), Manager: Compliance (DCS), AGSA, said that the findings on non-compliance were similar to those reported in 2019/20, and particularly related to procurement and contract management. They had also led to:
• Consequence management findings;
• Irregular expenditure of R1.41 billion (a 35% increase over 2019/20); and
• Fruitless expenditure of R1.13 billion (a 93% increase), largely related to interest on late payments.
Mr Deane discussed the causes of DCS’s irregular expenditure, and various irregularities found in the COVID-19 expenditure audit. The COVID-19 irregularities were among the three DCS matters that were currently being investigated by the Special Investigating Unit (SIU). He concluded that DCS lacked effective consequence management processes. Worryingly, only 24% of the previous year’s fruitless and wasteful expenditure, and only 66% of the previous year’s irregular expenditure, had been reported for investigation. Over R5.5 billion in irregular and fruitless expenditure had not been investigated. There were also deficiencies in supply chain management.
Governance and internal controls
Key issues identified in AGSA’s review of DCS’s governance and internal controls were:
• The senior management team provided limited or no assurance, because of deficiencies in compliance and consequence management;
• The reviewing and monitoring of compliance required intervention; and
• IT systems controls required intervention.
In sum, the key causes of non-compliance at DCS were:
• Management was not effective in developing and monitoring the implementation of plans;
• Inadequate consequences for transgressions and poor performance were implemented by management; and
• Instability and vacancies in key positions.
Engagements with DCS and Ministry
Mr Nqola said that AGSA was one of South Africa’s effective Chapter 9 institutions. He asked what response or explanation DCS had provided regarding the significant irregularities picked up by AGSA. Did DCS agree with the content of the findings? He was asking because the chief financial officer (CFO) of another department had been “at loggerheads” with AGSA, claiming that its findings were based on incorrect information. He thought that at some point the audited department had a right to contest the findings if it believed that AGSA’s process or information had been incorrect.
Mr Eloff replied that DCS had agreed with AGSA’s findings on irregular expenditure – the irregular expenditure had been disclosed in DCS’s own financial statements. By disclosing the irregular expenditure, DCS had also agreed that there had been non-compliance, and had committed to investigating and following up on that non-compliance.
Mr Deane said that AGSA had had robust discussions with management and other DSC staff. AGSA wanted to ensure that DSC understood and took ownership of the findings, especially for the purposes of its action plans. So AGSA had had discussions with management at various levels – and not only in head office, because it also audited the provinces – and had held steering committees with commissioners and the CFO. DSC agreed with AGSA’s findings on irregular expenditure – it had disclosed them in its financial statements, and had earmarked them with a commitment to investigate them. Detection of irregular expenditure was in place at DSC – the problems stemmed from the consequence management side.
The Chairperson said that he hoped AGSA representatives would remain in the meeting later to hear the briefings by DCS and the Minister, so that they could hear the responses to the Committee’s questions about the audit.
Mr van Vuuren replied that he had an engagement later with another committee chairperson, but the rest of the AGSA senior management would remain in the meeting.
Mr Dyantyi agreed with the Chairperson that the AGSA should remain in the meeting, because its representatives were essentially present to “empower” Members by helping them to understand the financial statements.
He said that he had a question which, as AGSA knew, he always asked. Had the AGSA presented the same report to the executive authority at DCS? If so, when, and what commitments or undertakings had the executive authority made in response to the issues raised in the audit report?
Mr van Vuuren replied that AGSA had met with the Deputy Minister, but had not been able to meet with the Minister. However, it had provided the Minister with the full briefing documents used in the meeting with the Deputy Minister.
Mr Eloff confirmed that AGSA had met with the Deputy Minister, who had committed to follow up on the audit action plans, attend to vacancies, and address consequence management issues. Following that meeting, the AGSA had sent the briefing notes to the Minister, highlighting the proposed actions, but had not met with the Minister.
Mr Horn noted that only 24% of fruitless and wasteful expenditure had been reported for investigation. Had AGSA engaged with DCS on this figure? He knew that, as part of the audit process, AGSA produced a draft report and gave DCS the opportunity to provide additional information. He was asking because the Committee had met with DCS on this specific issue, which had been a perennial problem in DCS audits. In his recollection of that meeting, DCS had claimed that the real figures were the inverse of those reported by AGSA – that, in fact, investigations and consequence management had taken place in respect of about 75% of irregular expenditure and fruitless and wasteful expenditure. The Committee needed to clarify the issue in order to follow up with DCS.
Mr Eloff replied that the figure had been brought to DCS’s attention in AGSA’s management report. AGSA had received a response from DCS and had adjusted its report based on the information therein.
Financial audit outcomes, non-compliance, and consequence management
Mr Nqola said that the Subcommittee on Correctional Services should follow up thoroughly on the content of the briefing. The Committee commended DCS for improving its financial and performance reporting. However, the improvement had been achieved with the assistance of consultants (see slide 11), which indicated that there were internal capacity problems, especially within DCS’s finance branch. DCS’s procurement process was “a disaster.” It was disastrous for a department to have over R1 billion in irregular expenditure in an environment in which there were “serious service delivery setbacks” which required every cent of government funds to be dedicated to service delivery. Irregular expenditure rested on the work and conduct of DCS’s finance branch. Compliance with legislation and proper bidding processes were basic principles of awarding any tender. Admittedly, DCS was emerging from “a serious Bosasa regime,” which had severely undermined its finance branch. But, by now, there should be some palpable improvements – not consistent irregularities relating to basic procurement principles. He agreed with AGSA that the Committee should follow up on AGSA’s findings and recommendations (see slide 32), as per its constitutional duty. This should be prioritised in the Subcommittee’s programme, so that in the next financial year the Subcommittee could confidently say that it had done proper oversight over DCS in relation to the issues raised by the AGSA.
Dr Newhoudt-Druchen was pleased that DCS had received an unqualified audit. However, how was this improvement in DCS’s audit outcomes consistent with the fact that both irregular expenditure and fruitless and wasteful expenditure had increased?
Mr Eloff replied that the unqualified audit reflected the fact that DCS had met the required standards for its financial reporting. All irregular and fruitless expenditure had to be disclosed, and accurately disclosed. As far as AGSA knew – based on its completeness and accuracy testing – DCS’s financial statements in 2020/21 reflected all irregular expenditure incurred during the year. He thought this was indicated in note 26 or 27 of the financial statements. Another aspect of the audit report concerned compliance with legislation. In that section of the report, AGSA had highlighted non-compliance with procurement and contract management procedures, as well as with consequence management and expenditure management procedures.
Mr Dyantyi said that irregular expenditure had been rising over the last three years (see slide 15). It had risen from R158 million in 2018/19 to R1.04 billion in 2019/20 to R1.41 billion in the year under review. One could write a poem about the graph of irregular expenditure over time: “Rise, rise, irregularity.” Fruitless and wasteful expenditure had fluctuated, from R3.06 million in 2018/19 to R585 000 in 2019/20 to R1.13 million in the year under review. Overall, there had been a “regression” in 2020/21. Could AGSA elaborate on the R1.12 million in interest charged on late payments? That interest accounted for the bulk of fruitless and wasteful expenditure (see slide 16). What were the late payments?
Mr Deane replied that although fruitless and wasteful expenditure was improving on average, it did fluctuate and had increased in 2020/21. The figure was made up of a variety individual cases involving relatively small amounts. One component was late interest payments – cases where DSC had a financial obligation that it had to meet, and did so late. The other component was cases in which DSC paid for items that were not occupied or in use – for example, the payment of municipality fees while the DSC house was not occupied. AGSA could share a written breakdown with Members.
On irregular expenditure, he said that the major cause of the increase was deficiencies in DCS’s internal controls. There were two major categories of controls needed: controls for the prevention of irregular expenditure, and controls for the detection of irregular expenditure. In 2019/20, DSC had not had detection measures in place – hence the qualified audit. Its audit outcomes had improved in 2020/21 precisely because it had instituted detection measures. However, prevention remained a problem. The lack of internal prevention controls had led to irregular expenditure increasing from R158 million to R1.4 billion over the past three years. Without consequence management, irregular expenditure rose over time, because some irregular expenditure took place over multiple years or was repetitive. If DCS investigated prior irregular expenditure, it would be able to implement recommendations to prevent it from reoccurring. The investigations would not always find some individual to be liable, but they would elucidate the nature of the problem and suggest what controls to implement going forward. DCS would not solve its irregular expenditure problem without solving its consequence management problem. DCS might have more to add, but that was AGSA’s perspective.
He said that DSC’s 2019/20 audit had been qualified, because DSC had failed to disclose about R600 million in irregular expenditure. In terms of the reporting framework, DSC had to account for that undisclosed irregular expenditure in its 2020/21 financial statements – it counted as irregular expenditure identified in the current year, though incurred in the previous year. So between R500 million and R585 million in irregular expenditure had carried through from 2019/20 to 2020/21. A major component of irregular expenditure had been procurement done through price quotations when contracts were not in place, known as the splitting of orders. In simple terms, this was when DSC procured goods or services – usually perishable goods – through price quotations, when it could and should enter into a Treasury-regulated bidding process. In terms of Treasury regulations, any procurement over R500 000 had to be subject to a competitive procurement process. Both DSC and AGSA had calculated the extent of DSC’s splitting of orders in 2020/21, and their calculations had agreed – the audit confirmed that DSC had disclosed all the irregular expenditure related to the splitting of orders. Importantly, what this showed was that DSC was making progress on the identification and detection of irregular expenditure, but was doing poorly on prevention. That spoke to the internal control deficiencies which were leading to rising irregular expenditure at DSC. AGSA could share the full details of the investigations with Members in writing – they were very big files, in some cases dating back three or four years. It could also share the detailed breakdown of fruitless and wasteful expenditure.
The Chairperson said that allowances had been paid in contravention of a directive issued by the National Commissioner, resulting in irregular expenditure of R17 million. He had not heard AGSA refer to that.
Mr Deane confirmed that, for a certain period, allowances had been paid to members of DCS in excess of what had been permitted by the National Commissioner. The excess payment counted as irregular expenditure. Other elements of irregular expenditure had included non-compliance with delegations of authority with regard to negotiated prices above R10 million – those were cases where contracts had been approved by the CFO, instead of the National Commissioner – as well as contract extensions without appropriate approval and overspending on compensation of employees.
Mr Dyantyi said that there had also been a regression in the proportion of fruitless and wasteful expenditure that had been reported for investigation (see slide 16). The proportion that had not been investigated had risen from 74% to 76% in the year under review. What that meant, essentially, was that officials acted “as they wish,” and nothing was done about it in the majority of cases. He had “a big problem” with the related slide on compliance with legislation (slide 19). Was he correct that the slide indicated that 32 cases of irregular expenditure, amounting to R2.21 billion, had not been investigated? If so, the recommendations listed by AGSA for addressing the issue were not commensurate with the gravity of the issue. Were these the best recommendations that AGSA could provide on such a serious matter?
Mr Deane replied that AGSA had made deeper and more detailed recommendations in the management report, and those would go into DCS’s action plan. The AGSA had examined each irregular transaction and had provided a recommendation on each of its findings. Its recommendations to DCS had not been general – the recommendations in the current presentation were a very high-level summary.
Mr Dyantyi noted that risk management was recorded as an area “of concern” – unlike reviewing and monitoring compliance, it was apparently not an area in which intervention was “required” (see slide 27). Yet was risk management not precisely where the problem was?
The Chairperson said that when he had read the presentation the day before he had known that Mr Dyantyi was going to “harp on” about the risk management issue.
Mr Eloff replied that DCS had a risk management policy and processes in place. For AGSA, what was important was for risk management to be proactive and for it to roll down from corporate all the way to the lowest levels.
Ms Maseko-Jele said that there were many issues with non-compliance with legislation. She was asking herself, if DCS was not complying with legislation, what exactly was guiding its work? It was the legislation that outlined the processes to follow. However, that was a question for DCS.
Ms Maseko-Jele asked the AGSA to explain how the audit was conducted. She believed that this was the report for the national audit, because the Committee was dealing with the national department. However, DCS did have provincial and regional branches. Could the Committee identify the precise level at which the problems were arising? If most of the issues arose from a certain person or province, the Committee needed to know that, so that it could follow up.
Mr van Vuuren replied that the audit report was the final product of an audit conducted across the entirety of DCS. The AGSA audited individual correctional centres – the findings for each centre were communicated to the managers of the centre, and then were combined with the findings for other centres into a management report that was communicated at the national level. The AGSA looked at each individual audit area, and each province, and assessed the extent and significance of non-compliance in each. For the Committee’s benefit, AGSA could prepare a matrix of the non-compliance findings across individual centres. That could be sent to Members by early next week.
Mr Horn asked about AGSA’s finding on material irregularities (see slide 22). In his understanding, DCS had been among the entities selected for the pilot or roll-out phase of provisions enabling AGSA to report material irregularities directly to law enforcement agencies. No material irregularities had been found in respect of DCS. Yet other Members had already pointed out the “ballooning” of irregular expenditure. What did qualify, if not this, as the kind of material irregularity that would lead to direct reporting?
Mr van Vuuren replied that Mr Horn was correct that the DCS audit had followed principles outlined in the Public Audit Act (PAA) amendments. DCS’s high irregular expenditure was consistent with the finding of no material irregularities because not all irregular expenditure implied a material irregularity. A material irregularity involved material financial loss, as well as non-compliance. For example, a procedural or administrative defect might meet the definition of irregular expenditure in the Public Finance Management Act (PFMA), but would not be counted as a material irregularity unless it resulted in a financial loss. In DCS’s case, a large portion of the irregular expenditure related to the splitting of orders, which did constitute non-compliance but which AGSA did not find to have involved material financial losses. Another reason for DCS’s high irregular expenditure figure was that the 2020/21 figure included irregular expenditure that had been identified in 2020/21 but that related to previous years. DCS had received qualifications on the completeness of its irregular expenditure figures in both 2018/19 and 2019/20, which was why it had hired consultants. During the audits, AGSA evaluated all irregularities to see whether they qualified as material irregularities.
Adv Breytenbach asked why no referrals had been made, given that the audit indicated obvious contraventions of the PFMA. If that was correct, she found it “quite astonishing.”
Mr van Vuuren replied that consequence management was a requirement of the PFMA – the PFMA was still applicable, and was not usurped by the amendments to the PAA. The primary obligation still lay with the accounting officer to investigate and take disciplinary action where appropriate.
Adv Breytenbach asked for further detail about the few cases of fruitless and wasteful expenditure that had been investigated. What had been the outcomes of those investigations, and what had been the consequences for the officials who had misconducted themselves?
Mr Deane replied that the cases had resulted in a variety of outcomes and recommendations. In some cases of irregular expenditure, DCS had not found any individuals to be responsible. During the audit, AGSA had followed up on the implementation of the recommendations. AGSA could provide a written breakdown of the cases, and DSC could also elaborate. AGSA was mostly concerned with the investigations that had not been conducted – it had not had any findings about the cases that had been finalised. In the management report, it had highlighted to DSC the number and significance of the incomplete cases, and it would follow up on those in the following year.
Dr Newhoudt-Druchen asked what it meant that DCS’s senior management provided “limited/no assurance” (see slide 26). What did senior management require in order to provide assurance? For example, was it a matter of training and capacity-building, or of filling key senior vacancies? She was pleased that the audit committee had been rated as providing assurance, and that it did provide assistance and support in the department. In the past, she had thought that it did not.
Similarly, Mr Horn said that, according to AGSA, there had been no improvement in the assurance provided by the executive authority. The assurance provided by the executive authority had “stagnated” at the level of “some assurance,” which was not optimal (see slide 26). What was preventing the executive authority – who had been in office for two years now – from receiving a “provides assurance” rating?
Mr Eloff said that from AGSA’s perspective there were three things that had not been addressed at senior levels. These were procurement and contract management; consequence management; and the reoccurrence of non-compliance in procurement and contracts. In other words, what was missing was preventative controls, controls for monitoring the compliance of regional staff, and consequence management. Dr Newhoudt-Druchen was right that there were some procurement and contract vacancies in the regions – and possibly also at head office, since head office needed support from consultants. It was important to educate officials in the provincial offices about the new Treasury requirements. And, after the organisation had been capacitated and trained, there had to be consequence management in place.
The Chairperson said that AGSA had said that it had not met with the Minister.
Mr Eloff confirmed that AGSA had only met with the Deputy Minister, but had made the presentations available to the Minister.
The Chairperson said that AGSA therefore had not met with DSC’s executive authority. In the PFMA, the executive authority was defined as a member of Cabinet, and the Deputy Minister was not a member of Cabinet. On what basis was AGSA reporting that the executive authority provided “some assurance,” when it had not met with the Minister? It could not assume that he had responded or would respond to AGSA’s recommendations.
Mr Eloff replied that AGSA had met with the Minister during the previous cycle, in October or November 2020. The Minister had asked for the audit action plans to be provided to him. AGSA had assessed the Minister’s involvement by evaluating the success of the implementation of the audit action plans. He provided only some assurance because, like in 2019/20, the audit action plans had not been fully implemented.
Mr Dyantyi noted that AGSA reported an improvement in the assurance provided by the internal audit unit and the audit committee (see slide 26). Yet everything else in the briefing had indicated regression and deterioration. What had the audit committee improved on? He wanted to know whether the audit committee had “teeth.”
In a later follow-up, Mr Dyantyi said that his question about the audit committee had not been answered. However, hopefully he could pose it to the audit committee during the briefing from DSC.
Use of external consultants
Dr Newhoudt-Druchen asked about the consultants that had assisted DCS with its financial reporting. Were the consultants from AGSA, or were they private consultants? How long did AGSA expect DCS to require the services of such consultants? Government was of course attempting to reduce costs, including consulting costs, across the board.
The Chairperson asked how much the consultants’ services had cost. If that was going to be a recurring expense, what was the projected cost over the next few years?
Ms Maseko-Jele said that she had also wanted AGSA to elaborate on DCS’s use of consultants. During the briefing, she had inferred that Mr Eloff was emphasising the issue. DCS had only been able to achieve an improvement because of assistance from consultants.
Adv Breytenbach was very concerned about the use of consultants. How much had been spent? Why was it necessary to contract consultants in order to achieve progress, given that DCS already employed officials to do the work that the consultants were contracted for?
Mr Eloff replied that the consultants cost about R5 million over two years. Their work mostly related to supporting the accumulation and disclosure of irregular expenditure, to ensure that DCS did not receive another qualification in that regard. They were focused only on irregular expenditure, and not on other sections of the financial statement such as the management and disclosure of expenditure and assets.
Mr Dyantyi said that he was very impressed with AGSA’s diagnosis of the situation at DSC. However, he was disappointed by the mismatch between AGSA’s diagnosis and its recommendations. The AGSA had provided recommendations, but they were not commensurate with the gravity of its diagnosis. It would be difficult to follow the “superficial” action plan provided in the presentation.
The Chairperson agreed. The AGSA seemed to have provided standard recommendations that could apply to multiple cases, and they would not assist the Committee at all. The Committee was not really impressed by an unqualified audit – 27 years after the establishment of the democratic government, entities should be receiving clean audits. It wanted “radical” recommendations and suggestions. He thought that the Subcommittee on Correctional Services should begin to consider taking “very drastic” action. A department could not operate in this way without consequences. He was not satisfied with the approach of pursuing individual officials and sending a series of disciplinary warnings to each – “it won’t fly.”
Auditor-General briefing: Justice portfolio audit outcomes 2020/21
Mr Kenny Mothlala, Manager, AGSA, said that AGSA had not an opportunity to meet with the Minister yet. AGSA’s report had been signed in late August, and in September, because of the cyberattack, it had not been able to arrange the meeting by email. It had tried to arrange a meeting telephonically, but had not succeeded. AGSA would be meeting the Minister the following day.
The Chairperson asked whether the Justice portfolio at AGSA had met with the Minister in the previous year.
Mr Mothlala replied that it had.
He said that audit outcomes in the Justice portfolio had remained “stagnant.” As in 2019/20, DOJCD had received a qualified audit with findings; the South African Human Rights Commission (SAHRC) had received an unqualified audit with findings; and the remaining seven entities – the SIU, Legal Aid South Africa, the Justice Administered Fund, the Guardian’s Fund, the President’s Fund, Public Protector South Africa (PPSA), and the Office of the Chief Justice (OCJ) – had received an unqualified audit with no findings.
The audit of DOJCD had found:
• Financial reporting contained material misstatements;
• Problems with the usefulness, accuracy, and reliability of performance reporting; and
• Continued difficulties in compliance with legislation.
The audit of SAHRC had found:
• Problems with the usefulness, accuracy, and reliability of performance reporting; and
• Continued difficulties in compliance with legislation.
In these respects, the only change from 2019/20 was that the performance reporting of both SAHRC and DOJCD had deteriorated slightly in quality. Mr Mothlala explained DOJCD’s qualification, which related to contingent liabilities, although the financial statements had also contained other material misstatements. The contingent liability note had not been adequately reviewed by senior officials. Moreover, he added that AGSA had given DOJCD an opportunity to rectify the errors in the note, but the same problems had remained upon resubmission a week later. AGSA believed that disciplinary action should be taken against the official responsible for that oversight. One contributing factor was likely the vacancies in the posts of CFO and other senior management positions.
At DOJCD and SAHRC, the non-compliance issues were similar to those identified in the previous year. In 2020/21, the total Justice portfolio had incurred:
• Irregular expenditure of R414 million, of which R401 million (97%) was incurred by DOJCD and R8 million (2%) by OCJ; and
• Fruitless and wasteless expenditure of R363 000, of which R183 000 (50%) was incurred by PPSA and R116 000 (32%) by SAHRC.
Fruitless and wasteful expenditure had decreased by 70%, from R1.22 million in 2019/20, and irregular expenditure had decreased by 28%, from R573 million in 2019/20. However, Mr Mothlala noted that these calculations did not include an opening balance – if last year’s closing balance was taken into account, DOJCD had incurred irregular expenditure of about R2 billion.
In supply chain management, DOJCD and SAHRC still had material findings; OCJ, Legal Aid, and PPSA had findings; and only the SIU had no findings. In this respect, the only change was that OCJ had regressed – in 2019/20, it had had no findings.
Consequence management remained a challenge at SAHRC and DOJCD. Irregular expenditure investigations had not been finalised at those entities, resulting in a regression from 2019/20, when all irregular expenditure from the previous year had been investigated. However, onsequence management at the other Justice entities was good.
Governance and internal controls
Urgent issues identified in AGSA’s review of the portfolio’s governance and internal controls were:
• The senior management team and accounting officer at DOJCD provided limited or no assurance;
• Recordkeeping, daily and monthly controls, and compliance reviewing and monitoring at DOJCD and SAHRC required intervention; and
• IT system controls at OCJ required intervention.
Mr Mothlala added that AGSA’s concern with the senior management and accounting officer at DOJCD stemmed from the qualification and material findings of the audit. On the other hand, the executive authority, the Minister, had provided assurance, because he had fulfilled his duties by ensuring that the annual plans were approved in Parliament and that an accounting officer was appointed at DOJCD.
In sum, the key root causes were that management:
• Did not implement adequate controls to prevent procurement non-compliance;
• Did not implement adequate review and monitoring controls over preparation of financial statements; and
• Was not effective at developing and monitoring implementation of action plans.
The Chairperson noted Mr Mothlala’s remarks about the duties of the executive authority. Was he correct that, in Mr Mothlala’s view, the Minister’s duties were to ensure that financial statements were presented to Parliament and that an accounting officer was appointed. Were those the only critical areas in which AGSA had evaluated the Minister’s performance?
Mr Mothlala clarified that the AGSA did not consider the financial statements, for which, according to the PFMA, the accounting officer was responsible.
The Chairperson asked how many Deputy Director-General (DDG) posts were currently vacant at DOJCD.
Mr Mothlala replied that he did not have the exact number, but it was many.
The Chairperson said that it was the responsibility of the Minister to fill those posts and present his appointments to Cabinet. The AGSA’s assessment was therefore incomplete – the Minister should not only be held responsible for appointing the accounting officer.
Mr Mothlala agreed. The AGSA should have considered the DDG vacancies in this respect.
Adv Breytenbach said that AGSA’s report painted “a depressing picture” of DOJCD. Nothing had happened to halt the “downward spiral,” and DOJCD’s performance continued to deteriorate. It was extremely worrying, because DOJCD was a critical department, depended on by citizens for one of the most important functions in society.
She commented that the AGSA’s report was also “superficial.” The Committee relied on the AGSA to provide the Committee with sufficient and reliable information with which to hold departments to account. As the Chairperson’s question implied, AGSA’s analysis of the issues was not particularly deep, and, in her view, it had “glossed over” some of them. She urged the AGSA to make “a more concerted effort” to hold departments to account, and to provide more specific reports to parliamentary committees. It was not the time for “being kind, glossing over, and euphemistically painting pictures” – DOJCD was in “serious trouble,” and AGSA’s report had not been helpful for addressing that.
She was extremely concerned that DOJCD and SAHRC’s performance reports claimed achievements for which there was no evidence (see slide 9). Someone had to be held accountable, but they were not, and she wanted to know why.
She said that senior management vacancies had plagued DOJCD for years, since the previous parliamentary term, yet nothing was done about them. DOJCD’s former Director-General (DG) had been promoted for presiding over the “abysmal” financial condition, and abysmal condition overall, of DOJCD. After that, it had taken “forever” to appoint the new DG. She found it extremely worrying that DOJCD was apparently unable to appoint and retain competent people in senior positions, and she wanted to ask the Minister about it.
She was also worried by the “laissez-faire” approach to disciplinary issues at DOJCD. There were very senior officials who had been suspended for over a year pending disciplinary hearings in which there had been little progress, and nobody was held accountable for that lack of progress. Labour laws were “disregarded fragrantly” without consequences. When one suspended an official – especially a very senior official – one should be prepared to pursue disciplinary proceedings expeditiously. That also required an explanation from DOJCD.
Finally, Adv Breytenbach did not understand how AGSA could rate the status of the IT environment at DOJCD as “good.” A cyberattack had very recently subjected the DOJCD system to “complete destruction,” meaning that all the many entities under DOJ had been unable to function for many weeks. DOJCD was providing very little information about the attack, and Parliament did not know what had happened, who was responsible, what investigation had occurred and what its outcome had been, what and whose information had been lost and to what effect, and whether the IR was on top of the matter. She asked for an explanation for AGSA’s ranking DOJCD’s IT governance as “good,” given that a cyberattack had meant that the whole of DOJCD – the courts, the Master’s Office, social grants payments, and generally everything that made the country function – had been “rendered useless” for weeks.
Mr Horn clarified that IT governance and IT system and controls both appeared to be rated “of concern” at DOJCD (see slide 20).
Mr Mothlala confirmed that IT governance was rated “of concern.”
Mr Horn agreed with Adv Breytenbach – Members were all “painfully aware” of the implications of the IT security breach. He had belonged to the Committee for a long time, and he believed that this might have been the sixth or even the seventh consecutive year that AGSA had marked DOJCD’s IT security as a risk. At what stage did a serious repeat finding get escalated? For example, was there any stage at which AGSA might have published a special report, or even adjusted downward the audit outcome – even if the financial reporting and so on was relatively satisfactory – just in order to highlight the gravity of the IT risk? He knew that the AGSA had its own objective auditing standards. However, he thought that Members, as legislators, were feeling increasingly frustrated with departments that were able to get satisfactory audit outcomes by ticking some of the boxes, even when those outcomes did not correlate with the departments’ actual level of integrity and service delivery. To South Africans who had been on the wrong end of the security breach – who, for example, had been unable to access maintenance payments or the Guardian’s Fund – it was of no consolation that AGSA had previously warned DOJCD about the security risk or that the Committee had previously interrogated DOJCD about it. His question to AGSA was, how could Parliament and AGSA approach such issues differently? The cyberattack was a concrete example of the shortcomings of the current approach. The attackers might even have learned about the weakness of the DOJCD system from parliamentary briefings and audit reports.
Mr Mothlala said that AGSA reported on three areas: financial statements, performance reporting, and compliance. The standard report did not allow AGSA to include IT findings in the audit report. Perhaps the Committee or DOJCD could request a thorough special audit of the DOJCD IT systems. AGSA could report back to the audit committee, and it could also investigate the DOJCD response – how long it had taken to solve the problem, and how much money had been spent on data recovery – in order to see whether it qualified as fruitless and wasteful expenditure.
Mr Horn asked whether AGSA took it into account when senior managers were officially still employed by an entity but were absent from office because they had been suspended pending a disciplinary hearing. When evaluating senior management, did AGSA take into account such suspensions, as well as their “knock-on effect”? From the Committee’s point of view, it was clear that the CFO’s absence had affected DOJCD very negatively. There was an acting CFO, but it was common knowledge that acting positions were not optimal for decision-making. In such a situation, where it was clear that there was “no functionality” in senior positions even though they were not vacant, were the audit outcomes affected?
Mr Mothlala replied that AGSA would count those positions as vacancies. If someone was suspended and replaced by someone else in an acting capacity, the position was not permanently filled. Thus during the briefing earlier he had referred to the CFO post as vacant.
Mr Horn said that the Committee faced a difficulty in dealing with AGSA’s repeat finding about DOJCD’s reporting on contingent liabilities. When the Committee took DOJCD to task, it received the same response every year: that, because DOJCD included the State Attorney and therefore was responsible for all state litigation, it was practically impossible for DOJCD to accurately forecast its contingent liabilities. On those grounds, DOJCD told the Committee that AGSA evaluated its financial reporting unfairly, and that Members should not draw negative conclusions from the finding. Was this indeed a debate that DOJCD and AGSA were having? From AGSA’s perspective, was there any merit in DOJCD’s response? Were there other entities in similar positions who had found an acceptable way to forecast their contingent liabilities? It was worrying that the contingent liabilities finding was “perennial” in this way. Drawing a comparison with the IT security issue, which had also been raised repeatedly, one wondered whether contingent liabilities might also become a “catastrophe” for DOJCD in the future.
Mr Mothlala replied that AGSA did not devise the policy and procedure for estimating and reporting contingent liabilities. DOJCD explained to AGSA its policies and procedures, and were audited on that basis. The problem was that DOJCD did not comply with its own policy and procedures. For example, DOJCD said that it would exclude cases which were older than two years, considering those dormant. When DOJCD did not follow that rule, and did disclose such cases, he did not think AGSA could be blamed for taking fault with DOJCD’s reporting. The contingent liabilities issue could be resolved. In fact, AGSA had managed to estimate the misstated value, which meant that DOJCD could certainly calculate it.
Dr Newhoudt-Druchen noted the areas in which AGSA had said that intervention was required (see slides 19-20). It was now about six months into the new financial year, so had AGSA intervened in those areas over that time?
Mr Mothlala replied that “intervention required” meant that intervention was required by DOJCD, not by AGSA. It meant that DOJCD should take action as a matter of urgency. Usually DOJCD would include those areas in its action plan, to ensure that the problems were resolved.
The Chairperson asked the AGSA to attend the Committee’s meeting with DOJCD and the National Prosecuting Authority (NPA) on Friday, so that it could hear their responses on the issues it had flagged. Also, if there were any inconsistences between what the AGSA said and what DOJCD and the NPA said, the Committee would call on it to clarify during the meeting.
He said that Members were clearly unhappy with the AGSA’s recommendations. Mr Dyantyi had raised this issue in the earlier briefing, and Adv Breytenbach had just done the same. The Committee wanted AGSA to be “more robust” and to assist the Committee by recommending interventions. AGSA had forensic capacity. It was unhelpful simply to include a template of recommendations which did not change in response to the severity of a particular issue. AGSA should take that into consideration the next time it briefed the Committee. The Committee was serious about changing things and about service delivery – the audits were important to ensuring efficient service delivery. There was no point in an entity receiving a clean audit if it had not provided any services. Members knew that there were entities which received clean audits but which had high levels of corruption and, in some cases, no service delivery.
Mr Dyantyi agreed. AGSA’s “diagnosis” confirmed what the Committee knew about DCS and DOJCD, but it fell short on providing solutions. The Committee was appealing for AGSA to “go much further” – the Committee was ready to do so, but AGSA was “holding us back.”
Ms Maseko-Jele said that the Committee had earlier discussed DCS’s use of external consultants. Did DOJCD hire consultants?
Mr Mothlala replied that DOJCD did not.
The Committee adjourned for a ten-minute lunch break.
Minister’s political overview to annual reports
The Chairperson welcomed Mr Ronald Lamola, Minister of Justice and Constitutional Development, and Mr John Jeffery, Deputy Minister of Justice and Constitutional Development. He apologised that the Committee was behind schedule – AGSA’s briefings had taken longer than expected, though they had given the Committee “lots to think about.” He told Minister Lamola that “things are not good.” The audit reports reflected some areas of improvement, but the Committee had serious concerns about both DCS and DOJCD. Following the Minister’s political overview, the Committee would receive a briefing from DCS, and on Friday it would be briefed by DOJCD.
Minister Lamola opened his remarks with reflections about the local elections and status of democracy in South Africa. He said that the COVID-19 pandemic had challenged, but not defeated, the Justice portfolio in the 2020/21 financial year.
Office of the Chief Justice
Minister Lamola said that OCJ had obtained an unqualified audit outcome with no material findings, had implemented the case lines project fully in the Gauteng Division, and had maintained a vacancy rate below 10%.
Department of Justice and Constitutional Development
Minister Lamola said that the administration at DOJCD needed to be “re-engineered significantly.” In this regard, the following progress had been made:
• DOJCD now had a permanent DG and full senior leadership complement;
• The leadership and vacancy rate in senior management had begun to stabilise;
• A new macro-structure had been designed and would be approved before the end of 2021/22;
• 16 disciplinary cases relating to maladministration had been completed; and
• A culture and climate survey, and an assessment of the skillset of senior management, had been completed.
DOJCD expected to fill the remaining senior management vacancies before March next year, at which point the vacancy rate would fall below 9%. Minister Lamola discussed several recent highlights in DOJCD’s pursuit of modernisation and an effective state litigation system, including the roll-out of cashless courts and third-party management system Mojapay, progress towards a digital forensic lab under the Investigative Directorate (ID), and the establishment of six new Special Commercial Crime Courts.
In 2020/21, DOJCD had achieved 67% of its performance targets. In 2021/22, it was aiming for 80% of its annual targets, although, following the ransomware attack, this would be a challenge.
Department of Correctional Services
Minister Lamola said that DCS had shown “significant improvement” in 2020/21, having responded to the Committee’s call for it to attend to irregular expenditure, lack of consequence management, maladaministration, audit reports, and performance. It was committed to “unprecedented levels of openness, transparency and accountability.” In 2020/21, 64 out of 66 disciplinary hearings for corruption had been concluded, and 789 out of 933 cases of irregular expenditure had been investigated and concluded.
He discussed DCS’s anti-recidivism programmes, including the new Self-Sufficiency Model, under which DCS would utilise prisoner labour to produce food and generate revenue.
In 2020/21, DCS had obtained an unqualified audit for the first time in four years, due to interventions which had ensured that irregular expenditure was identified and disclosed. It had achieved 70% of its performance targets, with the COVID-19 restrictions serving as the primary barrier to further achievement. Procurement policies and delegations had been updated and reviewed. DCS had also identified a shortage of supply chain specialists across correctional centres, which would be urgently addressed.
To date, COVID-19 vaccines had been administered to 19 110 out of 39 743 officials (48%) and 95 639 out of 138 327 inmates (69%). 239 officials and 101 inmates had died from COVID-19 complications, and there were currently 73 active cases, comprising 67 among officials and six among inmates. He concluded that there were still challenges, but DCS was “turning the tide.”
Adv Breytenbach said that she did not underestimate the size and difficulty of Minister Lamola’s job – it was impossible for him to be in control of everything. However, his claim that everything was fine at DOJCD and DCS was false, and she suspected he knew that. Both DOJCD and DCS were in a “downward spiral,” which was deeply concerning, and it was also deeply concerning that Minister Lamola had not acknowledged that. His report had been broad, “superficial,” and “simply not helpful” – nor “particularly honest.” The portfolio was in “big trouble,” and it would take more than a couple appointments and strategy planning sessions to fix it. He had been in office for some time, and the Committee had been lenient with him – he had inherited a “not particularly functional” portfolio. However, he had now “run out of runway.” The Committee had to start demanding better performance, or “soon there will be nothing left.”
Minister Lamola replied that it was incorrect to say that he had claimed everything was okay in the departments. He had acknowledged that there were challenges – deep-rooted challenges which needed to be addressed.
Adv Breytenbach asked why it had taken so long to appoint a new DG at DOJCD. When Mr Vusi Madonsela had been promoted to ambassador for his “abysmal performance” as DG, that could not have come as a surprise. So why had it taken so long to replace him? This happened constantly. Why was there currently an acting National Commissioner at DCS? Mr Arthur Fraser, the previous Commissioner, had been on a contract – everybody had known that his tenure was going to end. Why had preparations not been made, with advertisements and interviews conducted timeously? There was no reason that the vacancy could not have been dealt with proactively.
Minister Lamola replied that sometimes such issues were not in the Ministry’s control. One could not just wake up and appoint a National Commissioner or DG, even if one wanted to. There was a procedure, prescribed by the Department of Public Service and Administration (DPSA) which had to be followed. That process was currently underway in respect of the National Commissioner post. The Ministry had hoped that the position could be filled by the time of Mr Fraser’s departure, but unfortunately that had not been possible. The situation had been the same with the DG at DOJCD – it had taken time because there were DPSA and governance procedures to follow.
Adv Breytenbach noted that, as Minister Lamola had said, 16 disciplinary hearings had been conducted at DOJCD (see page 3). What had the outcomes of those hearings been, and what were the consequences for the officials involved? And how many hearings were pending? Without that other figure, the number 16 meant “absolutely nothing.”
Minister Lamola replied that three officials were serving charges, one had been judged not guilty, and one was awaiting a verdict; two cases had been postponed, one was awaiting a new date allocation, and two more would be heard during the course of this month. The CFO and Chief Director: Supply Chain at DOJCD had resigned during the course of the disciplinary proceedings against them, so those cases were now finalised.
Adv Breytenbach asked what Minister Lamola meant when he said that a new macro-management structure would be implemented and that DOJCD would appoint “highly skilled personnel who can effect reforms to the criminal justice system” (see pages 3-4). Such broad statements were meaningless and unhelpful – they did not help the Committee to determine whether things were going well at DOJCD. Moreover, Minister Lamola’s broad overview had differed substantially from AGSA’s broad overview – she was not sure whether he had read the audit report. For him to tell the Committee that DOJCD and DCS were improving, when they clearly were not, was “disingenuous.” She was not sure whether he thought Members were “stupid” or whether he was not informed as to the actual situation.
She said it was good news that MojaPay had been implemented at 483 courts (see page 4). However, that arrangement had promptly collapsed when DOJCD’s IT system was attacked. The Committee had received no insight into the particularly crucial matter of the cyberattack – it had been “glossed over” as though it had not happened. How had the IT system become vulnerable enough to be attacked in the way it was? What was in place to prevent such an attack? What was in place to mitigate such an attack? What backups were there? How much information had been lost, and whose? Did those individuals know that their information had been lost, and, if not, why not? Was the IR on board with the investigation into the attack? Had the IR been timeously informed and given proper access to the proper information in order to conduct a proper investigation?
Minister Lamola replied that DOJCD had complied with the Protection of Personal Information Act (POPIA). A report had been provided to the IR, and a public statement, and several updates, had been issued to inform the public about the developments. The attack had compromised the access of some South Africans to justice and services. Most, if not all, services were now restored, but DOJCD still received, and attended to, occasional complaints about localised problems. It was true that “red flags” had often been raised about DOJCD’s IT systems. But cybercrime was a challenge facing the whole country – various departments were facing the same challenge; DOJCD was not an exception.
He said that the Ministry had told officials to establish a cyber-response team, which would enable DOJCD to mitigate against some of the risk factors. However, the reality was that, across the country, DOJCD’s IT infrastructure was old, and many of its licenses were expired. Old infrastructure was particularly vulnerable to cyberattacks. That was why the modernisation project at DOJCD was a priority, and the Ministry had instructed the DG and other officials to attend to that.
Adv Breytenbach welcomed the news that the ID was at an advanced stage in building a digital forensic lab. The lack of such a lab had been a serious deficiency for a very long time, so, if this was true, and if it was done correctly, it would be “wonderful.” However, she hoped that this was not the only thing that the ID had done in the year under review. The ID had other work to do and the Committee had not received any updates, from the Ministry or from the ID. Minister Lamola had mentioned freezing orders (see page 5), but those involved a very small amount of money, compared to what had been stolen during state capture. Parliament had hoped to see more progress, and she was disappointed that there had not been any.
Minister Lamola replied that the forensic lab currently being used by the Zondo Commission was going to be transferred to the ID. So the capabilities were already established – they just needed to be rehoused at the ID, under an agreement with the Commission and Treasury. The project was at an advanced stage. Of course, this decision had been made with “an eye to the future.” Both the Zondo Commission’s report and research currently being conducted by DOJCD would help in working out what the future outlook of the ID, as a “corruption-busting” institution, should be.
Adv Breytenbach said it had to be a positive development that new Special Commercial Crime Courts had been established. However, she was not sure what the rationale was for establishing those courts in areas where there was not usually much commercial crime. Would it not have been more cost-effective to send commercial crime prosecutors into those areas as and when the need arose? She hoped that the courts were staffed with specialist prosecutors, but she also did not think it was wise to keep specialist prosecutors in an area where their expertise might be underutilised.
Minister Lamola replied that the decision about the locations of the courts had not been arbitrary – it had been a response to a need identified in those provinces. Currently, the Gauteng courts were overburdened with commercial crime cases from the provinces in which the new courts were being established.
Adv Breytenbach asked about Minister Lamola’s claim that DCS had showed significant progress in 2020/21 (see page 6). When and where had it shown this progress? The Committee had not seen or heard of it. Such statements were untrue and unhelpful. Both irregular expenditure and fruitless and wasteful expenditure had increased at DSC in the year under review. Minister Lamola had also mentioned consequence management, but the Committee did not know of any consequence management occurring at DCS. When he said that officials had been found guilty of financial misconduct, the Committee wanted to know what the consequences had been – what had happened those individuals?
She asked why the disciplinary proceedings against the CFO at DOJCD were taking so long. That was a high-profile and important matter – the vacancy in the position was affecting DOJCD – and it was unacceptable that no progress had been made in the disciplinary hearings. The same applied to the disciplinary proceedings against Ms Theresia Bezuidenhout, the former acting Chief Master of the High Court.
Minister Lamola replied that the CFO post at DOJCD was vacant because the CFO had resigned during the disciplinary hearing. The Chief Director: Supply Chain had also resigned during disciplinary hearings. That meant that both posts were left vacant. DOJCD could have held interviews for the CFO position by now, but unfortunately there had been difficulties in the last two months, for reasons known to the Committee. It would soon hold interviews and undergo the parliamentary processes for appointing a new CFO.
He said that as Members knew, disciplinary hearings were not under the sole control of the employer – they also involved the employee and other parties, all of whom could contribute to delays. For example, a postponement might be necessary because a witness or legal representative was sick. The departments always strove to expedite the hearings and conclude them as quickly as possible. However, the progress of the hearings was not always in the departments’ hands.
Adv Breytenbach said that Minister Lamola’s anecdote about a former inmate who had become an actress (see page 8) was nice, but she suspected the woman owed more to her own fortitude than to DCS for her success. DCS did indeed do a good job sometimes, as he had said. Yet it was not true that it was only “a few offenders” who gave DCS a bad reputation. South Africa had one of the highest recidivism rates in the world – as high as 87%, according to the National Institute for Crime Prevention and the Reintegration of Offenders. South Africa had to improve on that, and there were “serious problems” if Minister Lamola did not accept that.
Mr Nqola said that he would not deliver another “political overview” as Adv Breytenbach had. He said that AGSA had pointed out serious administrative issues, bordering on capacity problems, at both DOJCD and DCS – issues such as misstatements in financial reporting, a lack of consequence management, and a lack of compliance with legislative. Minister Lamola had now said that the administrative arm of DOJCD must be reengineered, which he approved of. He asked when the vacancies would be filled at DOJCD and DCS. That included, specifically, the vacancies in the posts of National Commissioner at DCS and CFO at DOJCD.
Minister Lamola replied that the Ministry hoped a new National Commissioner would be appointed soon, within the next one to three months.
Mr Nqola said that AGSA had said that there was no effective consequence management at DCS. Minister Lamola, in his overview, had mentioned that he had spoken to the acting National Commissioner about this. However, Minister Lamola should be aware that earlier in the meeting, the Committee had agreed that the Subcommittee on Correctional Services would pay particular attention to consequence management in the future. The Subcommittee would be keeping Minister Lamola on his toes, especially in relation to consequence management, and also in relation to some other issues raised by Adv Breytenbach.
Minister Lamola replied that the issue of consequence management at DCS had been “well ventilated” by Members. He acknowledged that a lot could be done in that regard. As he had said, disciplinary actions had been taken, and he had spoken about the issue directly with the acting National Commissioner. Consequence management issues – such as light disciplinary sentences, not proportionate to the severity of a misconduct offence – had been raised not only by this Committee but also by the Standing Committee on Public Accounts. The National Commissioner would look at DCS’s enforcement unit to ensure that it was responding to, and taking seriously, allegations of misconduct that emanated from AGSA’s reports.
Mr Horn asked what Minister Lamola would do differently in the current financial year to address AGSA’s finding, in its DCS audit, that the level of assurance he provided as executive authority was “not up to standard.” For two years now, that indicator had been at an amber level, meaning “of concern.” AGSA had told the Committee that it had been unable to secure an in-person meeting with Minister Lamola to discuss the DSC audit outcomes, and that was unacceptable. The audit happened only once a year. No matter how busy Minister Lamola was, he had to be available for that one meeting with AGSA. That was especially the case because irregular expenditure had increased “exponentially” since Minister Lamola took office. Before he took office, in 2018/19, DCS had incurred R158.6 billion in irregular expenditure – since then, irregular expenditure had been over R1 billion in both years, at R1.04 billion in 2019/20 and R1.41 billion in the year under review. It was possibly ironic that the President had tasked Minister Lamola with coordinating all investigations into possible COVID-19 corruption, while a department under his authority was itself subject to an SIU proclamation in that regard. Why had Minister Lamola not met with AGSA, and how would he ensure that his assurance level rating from AGSA improved?
Minister Lamola replied that he was not sure how Members had reached the conclusion that the Ministry did not take seriously the meeting with AGSA. He was not sure what AGSA had told the Committee, but, in his understanding, a meeting had been arranged with AGSA. It was unfortunate that the meeting had not taken place before AGSA’s briefing to the Committee. However, the Ministry had met with AGSA about the audit reports in all previous financial years. Members would be aware of the reasons that the Ministry had not been able to meet with AGSA in recent weeks – they had themselves been involved in campaigning and constituency activities over the same period.
Mr Horn felt that he had to emphasise the issue of IT systems and governance at DOJCD, though other Members had already raised it. Weaknesses in IT security had led to the “virtual grinding to a halt” of services, especially services to key and vulnerable DOJCD clients, during the cyberattack. Minister Lamola and DOJCD had been warned about the cybersecurity risk for years – every year, AGSA had flagged IT systems and IT governance as a threat to DOJCD. The Committee now had to ask why this weakness was never addressed. The Committee did not hold Minister Lamola responsible for what had happened before he took office, but it had raised the IT security issue with him since he took office. Why had the Committee’s warnings not been taken seriously enough to prevent the breach from occurring?
He said that Minister Lamola had appointed a committee, led by retired Deputy Chief Justice Dikgang Moseneke, to look into broadening access to justice in South Africa. What were the financial implications of this for DOJCD? Moreover, looking at the 13 October press release on the committee, he could not understand why a committee of consultants was needed to come up with practical solutions for broadening access to justice. The relevant information – such as about equitable distribution among courts and the legacy of apartheid spatial planning – was readily available. This should really be “a desktop exercise.” Why had Minister Lamola deemed the committee necessary? The committee was, “for all intents and purposes, just another set of consultants,” and it was already well known what was wrong with justice in South Africa – the country did not need the insights of a committee, especially, given the current fiscal situation, if their answer was going to boil down to further financial expenditures. What was the thinking behind this committee and how much would it cost?
Minister Lamola replied that he thought Mr Horn was “underplaying” the significance of the rationalisation issue that the committee was going to investigate. That day, the Justice, Crime Prevention and Security (JCPS) cluster, through Cabinet, had approved the rationalisation of the magisterial districts in the Eastern Cape, Western Cape, and KwaZulu-Natal. This was important because the current positioning of magisterial districts and high courts undermined people’s access to justice, causing suffering. For example, residents of East London had to litigate in Grahamstown High Court. So the committee was not a “useless” or “light” activity, or an exercise in government expenditure – it was an important transformation project, central to the administration of and access to justice. DOJCD had appointed retired judges precisely because their salaries were taken from the National Revenue Fund – they would not be paid a consultancy fee. A rationalisation project of this nature had not been undertaken since 1994 – and, even then, it had been “proclaimed” but not really implemented. For that reason, there were courts that did not have a sufficient number of judges, and, when those courts asked for additional judges, that posed an additional expense for government and the National Revenue Fund. The country needed a sustainable solution which would expand access to justice.
Ms Maseko-Jele thanked Minister Lamola for responding promptly when the community of Vosloorus called for him to go there. It was “a good gesture” and commendable, and the community was still happy today that he had gone.
She reiterated what the Chairperson had said: what the Committee had heard from AGSA was “really not good.” However, AGSA had said that it had not met with Minister Lamola, so that might explain why he was “surprised” about Members’ “strong words.” In particular, AGSA’s report reflected poorly on consequence management and investigations into irregular expenditure, and AGSA had said that the departments had been ignoring its recommendations. She agreed with other Members that the problems were mostly in administration – Minister Lamola needed to examine that area. The Committee applauded him for the good work and progress in infrastructure delivery and on other issues that he had talked about in his overview. The issue was “the heart” of the departments, the administration, including finances and irregular expenditure. That was what Minister Lamola should concentrate on.
She knew that this was a political overview, but she also wanted to know about whistleblowers. Recently, Mr Athol Williams, a whistleblower who had fled South Africa for his safety, had appeared on television. What was Minister Lamola doing about whistleblower protection? It was not only Mr Williams – other whistleblowers, and their families, were very concerned about their safety.
Minister Lamola replied that the DG at DOJCD had set up a task team to look at the matter, including by researching the policies of other jurisdictions such as the United States and Canada. The team involved the SIU, the NPA, and the South African Police Service (SAPS). The intention was to devise a policy for responding to the current challenges.
Deputy Minister Jeffery added that there was effective legislation for witness protection: the Witness Protection Act, administered by the NPA. However, that applied to individuals acting as witnesses in court cases, and required them to relocate, sometimes permanently but usually temporarily. For a certain period, the witnesses were moved and housed in a safe place, and undertook not to return to their homes – it was effectively a temporary “removal from society,” which was not suitable for many people. So the task team that Minister Lamola had referred to would be looking at other options. What whistleblowers needed was protection, which implied that there had to be some kind of criteria for eligibility and so on. Ms Maseko-Jele was right that it was a serious issue that had to be addressed as soon as possible.
The Chairperson congratulated DCS for achieving a matric pass rate of 81%, against the national average of 76%, and for employing youth in 72% of positions, against its target of 20%.
He asked for an update on the roll-out of the Integrated Inmate Management System (IIMS). He thought Minister Lamola had promised to provide such an update in his last presentation to the Committee.
Minister Lamola replied that he would provide a written response.
The Chairperson was concerned that, at DCS, five senior managers had not disclosed their financial interests, and that a number had not signed performance agreements. Out of 168 senior managers, only 90 had signed performance agreements. When Minister Lamola signed his performance agreement with the President, it was expected that this should cascade down, with the DG, DDGs, and so on all signing their own agreements. If only 90 had signed, how could the Committee take Minister Lamola seriously when he said he was going to turn around DCS? How was he going to turn it around? There also appeared to be no consequence management for those who had not signed.
Minister Lamola replied that the Ministry would have to follow up, but it had raised the performance agreement issue with senior management at both DCS and DOJCD.
The Chairperson said that DCS had not investigated 32 cases of irregular expenditure, amounting to over R2 billion, and 120 cases of fruitless and wasteful expenditure, amounting to over R3 million. This was a serious concern for the Committee. He did not think that only accounting officers should be held accountable in this regard. The Committee had a responsibility to ensure that taxpayers’ money was spent responsibly, and it wanted Minister Lamola to attend to this and other issues arising from the audit reports. Moreover, as Mr Horn had pointed out, it was mandatory for Minister Lamola to engage with AGSA on the audit reports. The Committee could not be happy to receive such reports from AGSA, especially while hearing that Minister Lamola had not yet met with AGSA.
Minister Lamola replied that he thought he had already touched on irregular expenditure in his responses to other Members – he agreed that there had to be a plan for consequence management, irrespective of whether the official was a junior or senior manager.
The Chairperson said that, as public representatives, the Committee had to point out that 0% of DCS tenders above R30 million had been awarded to designated groups. He thought that, to this extent, DCS had failed to live up to a key part of the ANC’s manifesto. The Ministry should focus on that to ensure that officials were doing what they were supposed to be doing. If women, youth, and people with disabilities were not benefiting from tenders, who was benefiting?
Finally, he said that he had a difficult question about remand detainees. Under DCS, there were 47 728 people who were remand detainees, and most of them were in detention because they could not afford bail of R1 000 or less. How should this issue be dealt with? Because Minister Lamola interacted with many parts of the justice system, he might be well positioned to make suggestions. The Chairperson knew that Judge Edwin Cameron had “very radical” views on this, and he did think that the issue should be attended to and prioritised.
Minister Lamola replied that Deputy Minister Jeffery could be helpful to the Committee in this regard, because he had been close to the issue.
Deputy Minister Jeffery said that there was a relevant provision in either the Correctional Services Act or the Criminal Procedure Act that could be used to reduce the number of remand detainees in custody. If there were remand detainees who could not pay bail, the head of the correctional facility could approach the magistrate in chambers to consider the cases – he thought there was also an opportunity for the NPA to make an input during the process. With the cooperation of the Chief Magistrates, this provision had been invoked during the hard lockdown of 2020, and he thought it had resulted in some detainees being released. However, he was not sure whether it was being used now and what the current statistics were. DCS would be able to provide the details – the Committee could ask for them during its engagement with DCS later in the meeting.
The Chairperson said that he thought a more sustainable approach needed to be found – not a “touch and go” approach. South African prisons were extremely full, so it was not sensible for 47 000 people to be in remand detention, sometimes for years, because they could not afford bail. At some point the Committee had intended to hold a joint meeting with the Subcommittee on Correctional Services, DOJCD, DCS, and the Ministry, in order to discuss this issue.
The Chairperson said that he had been told that Mr Inkosi Sango Patekile Holomisa, Deputy Minister of Correctional Services, was not present because he was held up in a subcommittee meeting. He thanked Minister Lamola and Deputy Minister Jeffery for the political overview and discussion. The Committee would now receive a briefing from DCS, going into much more detail about its performance and the issues raised by AGSA, and it would meet with DOJCD and the NPA on Friday.
Minister Lamola thanked the Committee for its input and constructive criticism, which the Ministry would take seriously.
The Committee adjourned for a five-minute break.
DCS briefing: annual report 2020/21
The Chairperson suggested that the DCS presentation should be limited to half an hour, because the Committee was well versed in the issues, having discussed DCS for much of the morning.
Mr Horn agreed.
Mr Joseph Katenga, Chief Deputy Commissioner: Strategic Management, DCS, said that DCS had presented its fourth-quarter performance to the Committee on 3 September. Since the performance reporting was cumulative, there were only some small differences from the report that had been given on that occasion. At that meeting, the audit had not yet been finalised – DCS now knew that it had achieved its target of an unqualified audit. However, during the audit process, it had emerged that the unnatural deaths target had not been achieved, contrary to what DCS had initially reported.
Security and incarceration
There had been an increase in security breaches and escapes at DCS facilities in 2020/21, due to operational challenges and the outbreak of the COVID-19 pandemic. There had been a total of 47 unnatural deaths, 55% of which were suicides and 28% of which were homicides, due to non-compliance with security policies and procedures.
As of 31 March 2021, DCS had 140 498 inmates across 110 836 beds. The special parole dispensation, implemented at the outbreak of the pandemic, had resulted in the release of 13 903 non-violent offenders. However, the closure of courts during the lockdown had contributed to increases in the number of remand detainees. Mr Katenga added that remand detainees were a key contributor to overcrowding, and the issue required further discussion.
2020/21 annual performance
In 2020/21, DCS had achieved 38 out of 54 (70%) of its annual performance targets, a decrease from its 89% achievement rate in 2019/20. Mr Katenga discussed the reasons behind DCS’s failures on certain indicators. Much of the underperformance was attributable to COVID-19, either as a result of lockdown restrictions or as a result of the reprioritisation of work that had become necessary upon the outbreak of the pandemic. Other obstacles had come from procurement delays.
In programme one: administration, DCS had met nine of 21 targets. Those not met were:
• There was a 3% increase in victims participating in the restorative justice programme, against the target of 7%;
• 16 ethics, fraud prevention and anti-corruption awareness workshops had been conducted, against the target of 30;
• 45% of reported allegations had been investigated, against the target of 50%;
• Employment equity targets had not been met;
• The Integrated Human Resources Strategy had not been implemented;
• The shift pattern system for correctional facilities had not been approved;
• The integrated finance and supply chain management strategy had not been approved;
• 0% of tenders above R30 million had been awarded to designated groups, against the target of 30%;
• The mesh network and integrated security system and inmate communications system had not been installed at any sites, against the target of five sites for each system;
• The sensing and surveillance system had been installed at one site, against the target of five sites;
• Network infrastructure was installed at 43.1% of sites, against the target of 48.6%; and
• Information systems had been implemented to 6%, against the target of 12%.
Programme two: incarceration had met five of seven targets. Those not met were:
• There were 117 escapes of inmates (0.083% of the DCS population), exceeding the target of 0.033%, mostly in the mass escape at Malmesbury; and
• There had been 47 unnatural deaths (0.033%), exceeding the target of 0.032%.
In programme three: rehabilitation and programme four: care, all targets were met.
Programme five: social integration had met five of seven targets. Those not met were:
• There had been a 7% increase in victims participating in the restorative justice programme, below the target of 3%; and
• 1% of offenders, parolees and probationers had participated in the restorative justice programme, below the target of 3%.
2020/21: financial performance
Mr Lebogang Marumule [can’t confirm spelling 5.23.06], acting CFO, DCS, said that AGSA had not explained the composition or context of DCS’s irregular expenditure. As noted on page 262 of the annual report, R688 million of the R1.41 billion in irregular expenditure had arisen from the belated disclosure of irregular transactions in previous financial years. He discussed DCS’s audit outcomes, highlighting measures that would be taken in the current financial year to improve expenditure management, procurement and contract management, and consequence management. Financial consultants had been hired for financial reporting because, internally, DCS was “falling short” on supply chain management, and there was also a problematic skills gap.
In 2020/21, DCS’s total budget appropriation had been R25.6 billion, of which it had spent R25.03 billion (97.8%). There had been underspending in programme one: administration and programme two: incarceration, and particularly in payments of capital assets. Only R340.4 million (47.2%) of the R720.8 million allocation for capital assets had been spent, mostly due to the COVID-19 lockdown and poor performance on the capital works programme. DCS had overspent on compensation of employees, due, among other things, to the payment of additional standard and danger allowances.
The Chairperson asked whether AGSA was still present in the meeting to respond to the explanation DCS had provided for its irregular expenditure in 2020/21.
Mr Deane replied that, while briefing the Committee, he had acknowledged that there were two categories of irregular expenditure, one of which was irregular expenditure that had been incurred in prior years but identified and reported in the year under review.
Mr Horn said that the Committee acknowledged DCS’s explanation for its irregular expenditure figures, but it was nothing new that irregular expenditure could have a knock-on effect by rolling over into subsequent years. There was no need for “splitting hairs” – even if the Committee gave DCS the benefit of the doubt and accepted that a portion of the irregular expenditure was historical, it was still irregular expenditure. The more pertinent question was what DCS would do to mitigate against the actions that typically led to irregular expenditure. Those were also not new – in past years, DCS had been taken to task for splitting orders, extending contracts without proper procedure, and so on. Ultimately, why would this financial year be different? DCS now had an acting CFO and an acting National Commissioner. Sometimes the Committee was told that it was not good to have people in management positions in an acting capacity, because they might be hesitant to take bold decisions. He joked that hopefully non-compliant procurement was a bold decision, so it would now stop.
The Chairperson added that the Committee wanted to know why it should believe that DCS would be able to deal with these longstanding issues. It had reported on its plans, but the Committee had been told about plans ever since he had first joined Parliament. Why should the Committee believe that DCS was going to do what it promised to do?
Mr Makgothi Thobakgale, Acting National Commissioner, DCS, replied that he could not give a complete response – his response could not be complete until the public and the Committee were able to observe concrete actions taken by DCS. However, he could indicate what DCS planned to do and what he had done since taking office. DCS management had been directed to attend to the specific findings and recommendations of the AGSA’s and SIU’s reports, including by identifying the officials who were responsible for each transaction that had been marked as irregular. Steps had already been taken to respond to the reports – the CFO, the Director: Supply Chain Management, and the Director: Logistics had all been suspended. The disciplinary process in that matter had already started – in fact, it was sitting for the first time this week, all week. These actions had been taken during his first week in office. However, the response was not ending there. There were two dimensions to the response. The first was speed – in the past, DCS had been slow in implementing the recommendations of the SIU and AGSA. DCS would indicate its progress in that regard in its future reports to the Subcommittee and Committee. The second dimension was substance. As he had said, DCS was now going to link each transaction to the official responsible for it, and respond appropriately to the findings.
Mr Horn said that the IIMS was another repeated promise from DCS. DCS’s newest “excuse” for the lack of progress on the IIMS seemed to be that the budget for the mesh network had not been approved. That explanation was “totally unsatisfactory.” Naturally, proper project management entailed knowing in advance when you would need funding, and how much, for each part of the project – and then ensuring, in advance, that you obtained approval for that expenditure from the budget. It was “nonsensical” to report that IIMS was not progressing because the budget was not approved. What did that mean? Did it mean that the project was on the books but not budgeted for? Or was it budgeted for but only in theory, without the funds having been released yet? What hope could the Committee have that the IIMS would progress in the current financial year? Would it have to conclude that the money was being spent without progress? In the 2020/21 report, the “between-the-lines” suggestion seemed to be that the Committee should be thankful that the lack of substantial progress on IIMS had resulted in financial savings to DCS. But DCS had spent the bulk of the budget, without making progress on IIMS, so that money was really “wasted.” As in the past, the Committee needed honest answers about the IIMS project.
Ms Nthabiseng Mosupye, Government Information Technical Officer, DCS, replied that IIMS and the mesh network were two separate projects. DCS’s internal resources were being applied to the IIMS project, and there was already an improvement. DCS had rolled out to nine sites in 2019/20 and to 26 sites in 2020/21. Mesh network was a secure communication network that DCS would use to integrate its security technologies – access control, cellphone detection and blocking, the offender telephone management system, and so on. DCS’s current infrastructure was dilapidated – it needed a new, secure communications network. DCS had done research and development, assessing several sites and their requirements. A roll-over of funds had been requested for that project, but Treasury had not granted it, so the project was currently underfunded. DCS would review and reprioritise its projects accordingly.
Adv Breytenbach said that she had wanted to raise similar questions to Mr Horn and the Chairperson. DCS continued in its “downward spiral,” despite engagements with the Committee and AGSA – despite everybody’s best efforts. There was no progress, and DCS’s performance continued to deteriorate.
Ms Newhoudt-Druchen asked why DCS had purchased personal protective equipment (PPE) at higher prices than recommended by Treasury.
Mr Marumule replied that the explanation given by the officials who had executed the transactions was that, at the time, services providers had quoted higher prices than those stipulated by Treasury. However, the investigation had found that action should be taken against those officials.
Dr Newhoudt-Druchen noted that DCS had requested a deviation from using the State Information Technology Agency (SITA) as its information technology service provider (see slide 31). How far along was that process? Had a new service provider found? How long would SITA remain DCS’s service provider?
Ms Mosupye replied that all IT procurement had to be done through SITA – DCS needed permission to deviate from its processes. There had been problematic delays at sites that lacked cabling or adequate infrastructure, so DCS had requested to deviate from SITA processes. However, following further engagements, SITA had now awarded the relevant tenders and DCS could proceed with the roll-outs.
Dr Newhoudt-Druchen said that only 90 out of 168 senior DCS managers had signed performance agreements. DCS’s explanation related mostly to COVID-19, but there were technologies allowing people to complete and submit forms electronically. Why had that not been done, and could it be done now? She also wanted to know about the five senior DCS managers who had not disclosed their financial interests (see slide 65). Had they made the required disclosures yet, and, if not, had DCS asked them to?
The Chairperson said that the Chairperson wanted to know the names of the DCS officials who had not disclosed their financial interests, along with their reasons. It would expect that list in writing within the next 36 hours. It also wanted in writing, within the next seven days, the names of the senior managers who had failed to sign, or refused to sign, performance agreements, along with their reasons.
Mr Thobakgale said that DCS would provide a written report as requested. The statistics demonstrated an improvement – some additional managers had now complied. DCS had also begun the process of sanctioning those who had still not complied. They had received letters indicating that DCS would move to suspend their salaries if they did not comply by the end of November. DCS would also report on that in writing.
Ms Cynthia Ramulifho, Chief Deputy Commissioner: Human Resources, DCS, said that two of the managers were suspended – they had not completed the documentation because they were not at work. DCS had asked DPSA to allow an opening on eDisclosure, and also had legal representation to help in securing the officials’ compliance. Other managers had, in September, and thus with two months’ notice, received letters from DCS indicating that their salaries would be suspended from the end of November until they complied. Letters had been written to all the relevant officials.
Dr Newhoudt-Druchen noted that the number of escapes from DCS facilities had increased to 117 in the 2020/21 year. She knew that part of that figure was due to the mass escape at Malmesbury, but what measures had been put in place to prevent further escapes?
A DCS official from the Strategic Management unit replied that slide 9 of the presentation showed that there had been a substantial increase in escapes in 2020/21. Those had mainly occurred in the second quarter, when there had been a mass escape – 68 inmates had escaped during that single incident, and 49 others had escaped over the course of the year. The number of escapes fell later in the year, when more was known about how to handle COVID-19. The pandemic had initially limited DCS’s ability to search inmates and vehicles, but, since then, standard operating procedures had been put in place, which had helped to stabilise the security situation.
Dr Newhoudt-Druchen asked why DCS’s figures for unnatural deaths differed from those provided by the Judicial Inspectorate for Correctional Service (JICS). DCS said that there had been 47 unnatural deaths in correctional facilities in 2020/21; JICS said that there had been 75.
A DCS official from the Strategic Management unit said that JICS reported on both confirmed and unconfirmed unnatural deaths. DCS, on the other hand, reported only on confirmed unnatural deaths. They were confirmed by a post-mortem report or medical practitioner, and the evidence was supplied to AGSA during the audit. Any unconfirmed deaths rolled over to the next financial year and were reported in the year in which they were confirmed. However, before tabling the annual report, DCS engaged with JICS to compare the data that each was reporting, to ensure that they could explain any discrepancies when the information was published.
Dr Newhoudt-Druchen said that there were 12 068 foreign nationals in detention in South Africa. When the President had allowed for people to be released on special parole during the lockdown, had that included foreign nationals and, if so, how many? Had that reduced the number of foreign nationals in DCS centres?
A DCS official replied that, to contain COVID-19 in correctional facilities, DCS had implemented a special parole dispensation. From 20 May 2020, when the dispensation was first implemented, to 2 August 2021, 14 005 inmates had benefited from the dispensation – 13 218 males and 787 females. DCS had realised that many of the foreign nationals in its facilities were in South Africa illegally. As a result, it had had to work closely with the Department of Home Affairs (DHA) to ensure that those who were in the country illegally were removed to their countries of origin once their sentence expired or if they qualified for the special parole dispensation. The DCS data was not disaggregated by nationality, but roughly 1 400 foreign nationals had been removed from the country by DHA. The special parole dispensation targeted low-risk offenders, those who had committed non-violent crimes. One of the requirements to qualify for parole placement was positive confirmation of physical address – because most foreign nationals were in the country illegally, they could not provide that, and they had had to be removed by DHA.
Ms Maseko-Jele said that the reports gave the impression that DCS officials deliberately disobeyed procurement regulations, especially around competitive bidding processes. Officials knew the regulations, so why was this non-compliance so persistent? Was it deliberate? If not, why did it continue? This linked to the Chairperson’s question, about the Committee’s faith in DCS’s ability to change.
Mr Marumule replied that DCS’s supply chain practitioners were fully aware of the prescribed procurement procedures and what was expected of them. As Mr Thobakgale had said, DCS was going to start making “harsher” disciplinary decisions in such cases. It was the only way that officials would learn that proper procedures had to be followed at DCS.
Ms Maseko-Jele said that, at some point, the Committee would need to know which companies acted as contractors and service providers to DCS. Those companies might be the reason that DCS officials did not comply with legislation. It was worrying that DCS might not know if its contractors were related to or acquainted with its officials.
Ms Maseko-Jele asked how long DCS would contract consultants for. How long would this situation continue, with government paying both consultants and DCS officials to do the same work even while DCS’s problems were not resolved? She understood that both the CFO and the National Commissioner were acting appointments, and that there were other vacancies, but she was worried about the money that was being spent on consultants, in lieu of officials being asked to “up their game.”
Mr Marumule replied that the consultants were currently assisting with irregular expenditure reporting, which fell within procurement. In that area, DCS had recently had a high turnover rate, with officials resigning or going on pension. Since it did not want to regress, it would continue to use consultants while that branch of the department was being capacitated. DCS would prioritise the appointment of supply chain management personnel.
Ms Ramulifho said that in a meeting with the Committee in September, she had told the Committee that DCS was facing challenges in filling vacancies due to budget cuts. This was a strategic risk and affected DCS’s ability to deliver on its mandate. For example, it had affected the supply chain management unit, the IT unit, and others. In order to manage the problem, and stay within the Treasury allocation, the human resources unit was reprioritising. It was ensuring that it was capacitating “the coalface,” and “rejuvenating the coalface” with youth appointments. It was also prioritising the appointment of nurses, medical workers, and social workers, and exploiting natural attrition as vacancies arose. DCS was submitting reports and motivations to the Treasury in advance of the medium-term expenditure framework (MTEF), indicating that, in the past two years, the budget cuts had affected its capacity and service delivery.
The Chairperson said that DCS had spent 97.8% of its budget in 2020/21. Was that expenditure justified by its performance over the same period?
He said that he thought the acting National Commissioner should answer the questions that the Committee had directed to Minister Lamola earlier, because they pertained to areas which were within his direct control. According to AGSA, DCS had not investigated 32 cases of irregular expenditure, amounting to over R2 billion. Why not? DCS had paid R17.2 million in allowances in contravention of a directive by the National Commissioner. What was DSC doing about that? Competitive bidding processes had not been properly followed in cases amounting to R121.2 million. Was that not a “crisis”? These were the laws of the country, and neither they nor the Treasury regulations were new, yet DCS was failing to abide by them to this significant extent. There had been non-compliance regarding contract variations or extensions, and contract overpayments, in cases amounting to R68.5 million. Moreover, extensions of contracts without appropriate approval amounted to R284.5 million, and there had been R136.1 million in irregular overspending on the compensation of employees budget. Did that overspending apply to the compensation of contracted employees, and, if so, what were the implications? If DCS was overpaying its contracted employees to that extent, would that not become a recurring expenditure for many years to come? Goods had been procured without the National Commissioner’s approval – what did that say about DCS? Officials were procuring goods and services without any legal authority to do so. Finally, he was concerned that DCS had procured R39 million in goods without following regulations in regard to local production and local content. This issue was more serious than implied. It undermined South Africa’s industrial policy. DCS was disregarding the instruction of another government department to “buy local.” There was no point in the Department of Trade, Industry and Competition preaching industrialisation if other departments were going to fail to comply with the government’s industrial policy. He wanted an explanation for that oversight.
The Chairperson added that DCS should not rely too much on COVID-19 as an explanation for its underperformance. Ms Newhoudt-Druchen had pointed this out in the past. He thought that the Committee was doing a lot of work during the pandemic – more than it had done before the pandemic. Society had adjusted. One could not blame COVID-19 for everything that one failed to deliver on. Of course, there were areas in which COVID-19 was relevant to performance, but it was problematic for it to be used to justify every failure.
On the R121.2 million in irregular expenditure relating to improper bidding processes, Mr Marumule replied that DCS should acknowledge upfront that the system had “collapsed” in the past. However, DCS was now strengthening it. DCS had introduced a system where every transaction between R100 000 and R1 million would go through a new committee, established to hold officials accountable. In partnership with its internal audit department, it had also introduced a due diligence process for all transactions over R1 million. For example, recently a cleaning services bid was supposed to be awarded at head office, but due diligence had found discrepancies, so the bid was not awarded. This process would ensure that bids were in line with supply chain management prescripts, thus eliminating or reducing irregular expenditure.
On the local content requirements, he said that DCS had engaged with AGSA on this finding. If he remembered correctly, the problem was that DCS had not properly advertised the tenders, and had failed to indicate explicitly the local content requirements. However, the service providers which DCS had ultimately selected had met the requirements. DCS had been unable to reach an agreement with AGSA on that finding, so it had agreed to disclose it as irregular expenditure, though it might be receded later, pending further engagement with Treasury.
The Chairperson said that the fact that DCS had eventually appointed the right service providers did not mitigate the fact that DCS was always obligated to implement national policy. For DCS to have failed to advertise the local content requirements was “gross negligence.” It was because of such behaviours that South Africa was deindustrialising, and it was unacceptable.
On the 32 cases of irregular expenditure that had been reported as not investigated, the acting head of internal controls, DCS, said that he could assure the Committee that all cases of irregular expenditure were investigated, although, because of capacity constraints, they were investigated at a very slow pace. These 32 cases were among the 144 cases, mentioned by Minister Lamola in his political overview, that had been outstanding at the close of the last financial year. They were in progress. DCS was making every possible effort to ensure that every case that was detected was registered into the irregular expenditure register and investigated. This fit into the new strategy described by Mr Marumule for reducing irregular expenditure.
On DCS’s overspending on employee compensation, Ms Ramulifho said that there were two categories of danger allowances. There were special allowances rightly given to those who worked in maximum security centres, and there were other allowances, relating to COVID-19. DCS was recovering the allowances from various employees – some had made special arrangements to repay in instalments. DCS would also institute disciplinary action to hold the relevant supervisors responsible. It would also have the Personal and Salary System (PERSAL) locked, with all payments and appointments requiring approval from head office.
She said that another element of the overspending on employee compensation stemmed from DCS’s medical capacity during the COVID-19 pandemic. DCS had had to contract nurses to support correctional centres, especially in levels five to three of the lockdown during the first six months of pandemic – it had been able to terminate their contracts thereafter. This had resulted in overspending. DCS had “suffered” under budget cuts, in terms of staff capacity and service delivery, and it had lacked the necessary capacity. DCS had raised this issue with Treasury, arguing that the budget cuts had affected services under DCS’s priority mandate. It had worked well with Treasury and it hoped that it would receive support from both Treasury and the Cabinet on an additional budget allocation for capacity-building. Budget cuts had affected capacity in supply chain management, IT, human resources, and finance, as well as in internal audit and risk management and in remand detention and incarceration. Several branches and regions had been affected on critical areas, and the human resources unit was now reprioritising those critical areas. DCS really required support. It had submitted a review to Treasury of its staff-to-inmate ratio, compared with current levels of overcrowding, and it held that the more overcrowded DCS was, the more funding it required. DCS was a 24-hours-a-day, seven-days-a-week establishment, and it was critical to the justice system.
Mr Moeketsi Mashibini, Chief Deputy Commissioner: Remand Detention, DCS, responded to the question the Chairperson had asked Minister Lamola about how remand detention should be handled. DCS agreed with the Chairperson that it was unacceptable that remand detainees who could not afford bail were “lingering” in DCS centres. It affected DCS spending, and DCS was doing everything in its power to ensure that those detainees were released. At the beginning of the current financial year in April, there had been 47 820 remand detainees; at the end of September, there were 43 945, representing a reduction of 3 875, about 8.1%. In August, DCS had surveyed remand detainees, and, to its surprise, had learned that only 10% had actually been given bail. Out of that 10%, about 70% could not afford to pay bail, because they were unemployed and lacked family support. That was why they remained in DCS facilities.
He said that DCS had bail protocols which it used to try get remand detainees released. It continued to apply Section 63A of the Criminal Procedure Act, which Deputy Minister Jeffery had mentioned earlier, and which allowed the head of a correctional centre to ask the court to review bail for detainees. In the second quarter of the current financial year, it had submitted 3 712 such applications, and 708 had been released on bail. DCS was committed to making use of bail protocols to release remand detainees to be with their families. Another bail protocol it relied on was Section 49G of the Correctional Services Act, which mandated an application for bail review by the courts for any remand detainee who had been detained for longer than two years. However, out of 2 520 such referrals submitted in the second quarter of the current financial year, only 39 had been successful, about 1.5%. The most significant hurdle in this regard was that the courts were reluctant to accede to the applications because of Section 165 of the Constitution, which provided for the independence and authority of the courts. DCS’s most important initiative currently was the overcrowding reduction strategy that it was developing. The strategy would mainly focus on remand detainees, and a major pillar would involve engaging with magistrates in different districts to motivate them to consider the bail protocols. DCS was committed to reducing the number of remand detainees through this process.
Mr Thobakgale added that DCS had agreed with the DG at DOJCD to form a joint task force to look more closely at the outcomes of the bail review applications.
The Chairperson said it was important to raise the Constitutional Court’s decision about JICS independence – the Committee had forgotten to raise it with the Ministry earlier in the meeting. DCS was supposed to be developing legislation to ensure the independence of JICS. How advanced was that process? There was a time frame, usually two years, for most Constitutional Court decisions. When the Committee was constituted, it had committed to meeting all Constitutional Court deadlines. However, it was always “undermined” by the executive and departments, who submitted bills at the last minute – thus allowing the executive to comply with the deadline, but leaving Parliament with insufficient time to process the bills, so that it appeared to the public and to the Court that it was Parliament which was failing to comply with the deadlines.
Mr Thobakgale replied that DCS had provided input to JICS on the draft JICS Bill. The only matter that had not been cleared was the question of how to treat JICS’s budget. DCS had consulted with Treasury, which had directed it to consider the JICS budget in terms of the Division of Revenue Act and its provisions regarding conditional grants. DCS was meeting with JICS tomorrow, and the draft would then be submitted to the executive for further processing. DOJCD had also supported the process. He was confident that DCS would be able to meet the deadline – this was one of the issues that he had prioritised when he took office, and he had already met with JICS personally.
Dr Newhoudt-Druchen asked what proportion of DCS personnel and inmates had received the COVID-19 vaccine.
Ms Ramulifho replied that 20 299 DCS officials, and 95 689 inmates, were vaccinated. DCS was continuing with the Vuma vaccination strategy, with advocacy and awareness measures, including continuous training and education for officials in the regions, to encourage officials to get vaccinated.
The Chairperson said that he thought the Committee had been very patient with DCS, especially with respect to consequence management. Now, however, the Committee wanted to receive a spreadsheet or list recording the names of all officials – especially supply chain management personnel – who had received disciplinary charges, along with the charges against them. The Committee would thereafter receive quarterly reports, through the Subcommittee on Correctional Services, about the progress of all of these disciplinary cases. Nobody could be allowed to break the law without facing consequences. If you added up some of the irregular expenditure cases involving non-compliance and overpayment, the funds involved were close to R500 million. The state might not have suffered a material financial loss in these cases, but there had been non-compliance. There were regulations for a reason, and they had to be complied with. Anybody who did not comply had to be charged, and the Committee would expect progress reports on the disciplinary processes against them.
He said that it was also time for the Committee to “demand” that DCS should receive a clean audit in 2021/22. A clean audit was within DCS’s reach if it wanted it. Of all the entities that reported to the Committee, only DCS, DOJCD, and SAHRC had not received a clean audit. A clean audit was a minimum requirement, like the 50% pass mark at schools. DCS could not claim to be providing good service delivery if it could not achieve this basic thing. Some other entities seemed to invite the Committee to celebrate their clean audits with them, but a clean audit was not something to celebrate. The ability to account for the money that taxpayers had placed in your hands was a minimum requirement. If you could not achieve it, why were you still in the public service?
He said that the Committee expected to receive the written report on the pending disciplinary charges by 10 December.
JICS briefing: annual report 2020/21
Justice Edwin Cameron, Inspecting Judge, JICS, thanked the Committee for its “long-suffering” work that day.
Opening remarks by the Inspecting Judge
Justice Cameron said that JICS had received another clean audit, largely due to the strict management of its Chief Executive Officer (CEO).
On the COVID-19 pandemic, he said that the interventions by the President and Minister Lamola had helped considerably, reducing the prison population by over 9%. However, the hard lockdowns had also led to deteriorations in conditions for all detainees – most rehabilitation and education programmes, as well as family visits, were suspended. DCS had mentioned that 20 000 personnel had been vaccinated to date, but that was only 49%. For him personally – as somebody who had been on antiretroviral drugs for 24 years, and whose own life had been saved by medical intervention – it was “painful” that DCS personnel were not embracing vaccination at a higher rate. By contrast, as of the current week, 68% of inmates had accepted vaccination, although JICS would like that to reach 80% or higher. It was distressing that fewer than half of DCS employees were vaccinated, given that they had been among the first to be offered vaccines.
On 4 December 2020, the Constitutional Court had handed down its judgement in Sonke Gender Justice v President. The judgement emphasised the importance of JICS, and required its establishment as an independent unit away from DCS. JICS had been working on that, and had developed a business case. An interdepartmental assessment committee had recommended that JICS be established as an autonomous component of national government. For this proposal, JICS had received the support of the former Minister at DPSA, and the consistent support of Minister Lamola. However, it also needed the support of the Minister of Finance. Minister Tito Mboweni had not been willing to give his support, but JICS hoped to obtain it from his successor, Minister Enoch Godongwana.
The Constitutional Court had also underscored the importance of JICS in relation to South Africa’s obligations as a signatory of the Optional Protocol to the Convention against Torture (OPCAT). A memorandum of agreement had been signed with SAHRC. As a side issue, this showed that JICS could work with SAHRC – indeed, its CEO had been assisting SAHRC with the institutional and departmental practicalities. This related to a question raised during JICS’s last meeting with the Committee, at which Adv Breytenbach and other Members had supported JICS becoming an autonomous government entity, rather than being absorbed under SAHRC.
He said that the JICS Bill was at an advanced stage. As DSC had told the Committee, it had provided input on the Bill, but there was a budgetary problem – Treasury had to commit to the costs implied by the Bill. The Chairperson was right to remind attendees about the complexity of the legislative drafting process, which Justice Cameron was also aware of from his time on the Constitutional Court. The Correctional Services Act also had to be amended concordantly in response to the Constitutional Court judgement. Thus far, JICS had not been consulted on those amendments, but it thought it should provide oversight and insights.
As Members knew, and DCS knew very well, JICS was “troubled” by DCS’s mandatory reporting. The reporting system first became “dysfunctional” more than five years ago. In JICS’s view, DSC had “shirked” its mandatory reporting responsibilities. The relevant statute was unequivocal, but there was severe underreporting. Members should respond with “great concern” to the finding that in 2020/21, even with underreporting, use of force had increased, and indeed had almost doubled. With the support of the Ministry and DSC National Commissioner, JICS had held a revealing webinar on the issue, involving international experts. Among the conclusions of the webinar had been that “institutional decay” had to be prevented. In recent months, there had been violent uprisings in South American correctional centres – South Africa was not there yet, but a “tight rein” had to be kept on developments, and JICS needed budget, operational leeway, and “extra teeth.” JICS’s statutory mandate was to protect the rights of prisoners – but this was a “double-sided” mandate, because protecting prisoners’ rights also created safer working conditions for DCS personnel. Segregations had also increased and almost doubled. DCS’s reporting system had collapsed, but the statistics gave an indication of the extent of underreporting: in a previous report delivered to the Committee, there had been about 10 000 segregations, but now only about 4 000 had been reported – obvious underreporting.
JICS was concerned about sexual violence, which it wanted DCS to use as a separate notation in its reports to JICS. The “general hardship and misery” experienced by detainees was shown by the increase in the number of hunger strikes, attempted suicides, and successful suicides. Another concern was the number of remand detainees who were in detention only because they could not afford bail. These were “prisoners of poverty.” Currently, there was a debate underway in the United States about the tenability, sustainability, and moral viability of cash bail – JICS believed it should be abolished.
Justice Cameron said that parole was “the lifeblood” of the correctional system. Deputy Chief Justice Moseneke had once explained to him that, from the moment an individual was incarcerated, his only thought was to get out. Thus parole was very important, and there were too few people being granted parole effectively, efficiently, and quickly. Sadly, there were also some bad decisions on parole, whose effects were especially acute in the case of lifers. He had to “point a judicial finger” in highlighting that there were too many life sentences laid down. In 1994, there had been only 400 inmates serving life sentences; currently, there were 17 188. In the year under review, nearly 4 500 of those lifers had been eligible for parole, but only 36 were released on parole. Urgent and radical rethinking should be given to the statutory provision which gave the Minister exclusive final say on all parole cases involving lifers. The backlog was unsustainable for the Minister. Though Minister Lamola was clearly capable, how could he deal personally with 4 494 parole applications? Transfers were another concern, and a source of “constant anxiety” for inmates. JICS lacked the operational and managerial powers to deal with these problems, but it hoped that the new statute would give it more mandatory oversight powers.
Justice Cameron reminded Members that Section 35 of the Bill of Rights promised conditions of detention that were consistent with human dignity. In some cases, that promise was met – in most cases, it was not. There was too much overcrowding, and not enough rehabilitation, education, and adequate parole. He was glad that Judge Brian Mashile had become head of the National Council for Correctional Services (NCCS), which sat at the top of the whole parole system, and he hoped that Judge Mashile would bring fresh energy and urgency to the system. Overall, the government was not fulfilling its constitutional mandate.
The Chairperson apologised to JICS for having kept their delegates waiting during the meeting – the correct time for its briefing had not been communicated. However, it was also important for JICS to hear the other briefings. He thought that one of the challenges in the justice system was exemplified by the fact that DOJCD and DCS, for example, did not attend each other’s briefings – it was important for state entities to have an interest in each other’s work, because their work was, ultimately, mutually interdependent.
2020/21 oversight reporting
Mr Vick Misser, CEO, JICS, said that JICS had inspected 136 out of 235 (57.8%) active correctional facilities in 2020/21, meeting its performance target. He added that, out of the 136 centres inspected, 11 were rated good, 113 were rated satisfactory, and 12 were rated unsatisfactory. He listed the centres which had been rated unsatisfactory, because earlier in the meeting the Committee had expressed interest in doing oversight visits to correctional facilities.
Mr Misser said that JICS had conducted 64 investigations in the year under review, including five cases of alleged assault or torture of inmates by DCS officials. He added that, in DCS centres across the country, CCTV camera systems were generally not functional – and if they were functional, the footage was often erased.
He also added that although Justice Cameron had already mentioned that there were 17 188 people serving life sentences in South Africa, he had not mentioned that this was an increase of 332 since the previous financial year.
JICS had received 340 complaints in 2020/21, a decrease of 97 from 2019/20. Through mandatory oversight reporting, it had recorded the following incidents in correctional facilities in 2020/21:
• 47 inmate-on-inmate assaults (decreased by 6 from 2019/20);
• 62 official-on-inmate assaults (decreased by 27);
• 13 sexual assaults (no change);
• 4 645 segregations (increased by 1 879);
• 75 unnatural deaths (decreased by 21);
• 455 natural deaths (increased by 120);
• 42 mechanical restraints (decreased by 1); and
• 694 uses of forces (increased by 336).
JICS had followed up on 26 criminal matters with the NPA and SAPS. 92 inquests were outstanding between April 2019 and March 2021.
Mr Misser discussed the activities of, and complaints handled by, the Independent Correctional Centre Visitors (ICCVs). In the year under review, there had been 133 declared state patients under DCS, although he noted that the current figure was 117, indicating that there had been an improvement and that the issue was being addressed. Of relevance to Dr Newhoudt-Druchen’s question to DCS, there were 14 883 incarcerated non-nationals, including 6 578 remand detainees, meaning that over 10% of detainees were not South African nationals. He also noted that, currently, about 32% of DCS inmates were remand detainees.
In 2020/21, 11 065 cases of COVID-19 were reported among inmates, DCS officials, and JICS officials. 171 DCS officials and 71 inmates had died of COVID-19-related illness.
JICS had initially been allocated a budget of R81.5 million in 2020/21, which had been adjusted to R74.5 million after a R7 million budget cut. JICS had underspent by R5.3 million (7.1%), due to underfunded vacancies and the national COVID-19 lockdown.
As of 31 March 2021, JICS had a total of 322 employees – 222 ICCVs, and 86 permanent positions, two of which were vacant. Mr Misser discussed the status of JICS’s property and facilities, noting that JICS’s head office would soon move. He noted that JICS had, for the first time, its own email and web domain and servers, and thus had moved away from the DCS system.
2021/22 oversight reporting
Mr Misser reported on JICS’s performance in the first two quarters of the current financial year, including the 73 inspections conducted thus far. Reports had been generated and would be submitted to the Committee once discussions with DCS and the Ministry had been concluded. 238 complaints had been received, and 154 had been finalised, leaving a total backlog of 89 matters at the end of September 2021. He also provided the mandatory reporting statistics from the first two quarters.
Mr Misser said that the ICCVs had dealt with 26 467 complaints in the first two quarters of the year, most of which had been resolved at the correction facility level. All 34 visitors’ committee meetings had been held as planned. In the second quarter, 12 178 non-nationals were incarcerated, including 5 728 as remand detainees.
In 2021/22 thus far, there had been 16 918 reported cases of COVID-19 at DCS and JICS. 238 DCS officials, 100 inmates, and 1 JICS official had died.
JICS’s budget allocation for 2021/22 was R76.1 million. In the second quarter, R38.5 million had been spent and R1.9 committed, with overspending on some items.
On the MTEF, Mr Misser said that, if JICS was to become an autonomous government component, it would require a budget allocation of R113.2 million in 2022/23 – an increase of about R37.1 million (49%). This had already been communicated to Minister Lamola through a separate submission.
Adv Breytenbach said that it seemed she was forced to begin all her interactions with JICS by complimenting it. About two weeks ago, she had reported a hospital death caused by an incident in custody. She thought she had made the report on a Friday, or even a Saturday, and by Sunday she had received a report from JICS, setting out all the circumstances of the matter. JICS’s “awesome efficiency” was very much appreciated.
She thought that the time had come to workshop of a couple of issues which probably could not be dealt with a Committee setting. For example, she was sure that Justice Cameron had very good ideas about how to deal with the remand detention issue – she also had some ideas, and she thought other Members did, too. The Dullah Omar Institute had written to the Chairperson, suggesting that a workshop should be held, and perhaps the management of remand detainees could also be discussed at that workshop – she knew that Prof Lukas Mutingh and Dr Jean Redpath of the Dullah Omar Institute also had good ideas. Perhaps the NPA could also be included. The state of correctional facilities should also be workshopped. Suicides among prisoners were “an indictment of us all.” In her experience, prisoners were not given much in the way of “anything resembling human rights.” It concerned her deeply, and she thought it should concern all Members. Government could not continue to treat people in this way. She had said this often in the past, following the Committee’s visit to St Albans Correctional Centre in the Eastern Cape: she would not even have left animals to live there. That was a severe indictment, and the workshop should consider how correctional services should be redesigned. The “Elastoplast approach” of superficially “touching it up” did not work, and, in any case, that was not an option anymore – there was not enough Elastoplast in the world to fix South African prisons. Government needed to consider taking a different approach. It should workshop to get some practical and workable ideas, and then find the funds to implement them. The current approach was not sufficient.
Justice Cameron said that he welcomed the idea of a workshop. The participants would have to ensure that the workshop had practical, constructive outcomes – it should not be a mere “talk show.” However, he would also take this opportunity to “stoke some controversy” in the Committee. There was one thing that the Committee could do to institute reform, but it was a “politically explosive” issue – that of minimum sentences. Whether you looked at the absolute figure or the proportion of the total population, there were an unacceptably high number of prisoners in South Africa. South Africa had one of the highest prison populations anywhere in Africa, and it was spending billions of rands on corrections, when it should be spending that money on constructive community interventions and community policing. South Africa’s approach to sentencing, to punishment and corrections, and to crime prevention was wrong – it was “upside down.” All these life sentences and minimum sentences in South African legislation were the legacy of Adv Jonny De Lange.
He said he would venture another “surprise” or “gentle bomb” for the Committee: South Africa should abolish all drug offences immediately. Doing so would be beneficial for the Cape Flats, where many Members were. It had been shown – in South America, central America, and the United States – that the criminalisation of drugs caused significant levels of crime. In proposing this, he was not saying something particularly “radical” – the same proposal had been supported by former President Kgalema Motlanthe. The war on drugs was self-defeating – it gave rise to crime and to the subversion of the criminal justice system. It was a “terrible mistake,” and an “expensive mistake,” initiated by Richard Nixon in June 1971, 50 years ago, with terrible consequences for townships in the Western Cape. Overall, however, JICS would welcome a workshop and embrace it as a chance to make some practical, politically difficult decisions. In South Africa right now, politically difficult decisions were necessary.
Adv Breytenbach said that she was bothered by the increase in the use of force. How could that be addressed, and what could the Committee do to assist? Inmates should not be helpless, outnumbered, unable to run away, and at the mercy of whomever wished to assault or kill them.
Mr Misser replied that he had already alluded to one solution during his presentation. He had referred to the non-functionality of CCTV cameras across the correctional environment. If the CCTV system was working, it would be possible to monitor, live, what took place, and how disorderly inmates were reprimanded, restrained, and segregated. But, because there were no CCTV cameras, there were incidents in which 15 or 20 Emergency Support Team members were “bashing” inmates until they were “flattened.” The CCTV system was one of the problems, and he thought that attending to it would redress the excessive use of force in DCS centres.
Mr Dyantyi, who had lost connection earlier in the meeting due to loadshedding, said that he had joined in the middle of the presentation by JICS. Significantly, Justice Cameron’s concluding remark had been that JICS was “walking parallel to its mandate.” He wanted Justice Cameron to repeat that conclusion and, at some point, elaborate on it – perhaps at the workshop proposed by Adv Breytenbach. Mr Dyantyi had had to take that up – that was not just a throwaway comment. He was glad that Justice Cameron had acknowledged it, because it had also been his own concern. What should be done about the fact that JICS was “travelling next to its mandate”? He did not need a response in the current meeting, but it was “homework” for JICS that he would look forward to. The issue would need more than a Committee meeting to be resolved – it would need the workshop. Once that was resolved, everything else would flow from it. This broad “thematic issue” had to be attended to seriously. It might be helpful for JICS to present a reworked strategic plan and annual performance plan, although he did not know how long that would take to prepare.
He said that the annual report was about looking back, and that should not be conflated with other issues. The annual report raised many important issues. On each slide of the presentation, he had wanted to know, with JICS having raised a given problem or cause of a given issue, what could be done differently? For example, JICS could not just complain about the use of force in DCS facilities, or instruct DCS not to use force – it should propose ways of attending to the problem. Other issues included remand detention and the number of non-nationals in incarceration. The proposed workshop could also help with these. He thought that there was an opportunity for JICS to “build something,” especially utilising the leadership of Justice Cameron, who was “one of our own.” When the Committee looked back in five years, it should have built a different JICS. He did not think there had ever been a “pull-back” to consider what kind of organisation JICS needed to be in order to deal with these issues. If that kind of reflection was not done, JICS and the Committee would just end up “ticking boxes.”
Mr Misser replied that JICS did not devise its strategic plan. Because it was “buried” as a programme within DCS, it had to align to the DCS strategic plan. However, that had not stopped JICS from crafting its own unofficial strategic plan “on the back end,” in preparation for its establishment as an independent component of national government. JICS also had its annual performance plan, which it submitted annually to the Committee. JICS would look forward to attending the workshop proposed by Adv Breytenbach, so that these issues and operational matters could be attended to in a more “hands-on” way.
He said that JICS was doing its best on criminal-related matters. Pages 66 and 68 of the annual report listed all 26 of the investigations that JICS was currently dealing with. Outstanding inquests were also of interest. On those inquests, JICS was following up very closely with Adv Rodney de Kock, Deputy National Director of Public Prosecutions, NPA, and his team. For one example, there was one matter in the Eastern Cape which had been initiated in 2009 and finalised in 2012, but which JICS had reopened based on information from the inmate’s daughter. Thereafter, the NPA had reopened the docket, and the case had recently been finalised. The details of the matter were contained in JICS’s second quarter report – in this case, the person responsible for the death had also passed away, of COVID-19-related illness. JICS’s work involved dealing with these criminal matters and inquests on an individual basis.
Ms Newhoudt-Druchen said that she had never thought to draw the comparison between antiretroviral drugs and the COVID-19 vaccine, drawn by Justice Cameron in his introductory remarks, but it was an apt comparison. About 25 years ago, when very little was known about HIV/Aids, people had been willing to take medication for it – whereas today they seemed hesitant to receive the COVID-19 vaccine. She wholly supported the vaccine, and it was sad to see that people were resisting it.
She said that section 90(2) of the Correctional Services Act said that the Inspecting Judge “may only receive and deal with the complaints submitted by” the NCCS and certain other parties. The Committee did not hear or read much about the NCCS – it reported only to the Minister, not to the Committee. She was trying to get a better understanding of its role. Out of the investigations and inspections done by JICS in 2020/21, how many had arisen from NCCS submissions?
Mr Misser replied that JICS received reports from NCCS which were dealt with by the Inspecting Judge as they arrived, on an ad hoc basis. Recently, Justice Cameron had engaged extensively with the new head of the NCCS, Judge Mashile. JICS was building its relationship with NCCS, anticipating further engagement on the specific issue of complaints about parole matters.
Dr Newhoudt-Druchen asked whether the number of suicides in correctional facilities was at a normal level, or whether it had increased due to COVID-19. She also wanted to understand how many suicides resulted from the inmates not receiving medical and psychiatric treatment and services. One inmate, mentioned in JICS’s report, had to travel between Cape Town and George in order to see a psychiatrist. How many others had to travel long distances to receive psychiatric services? Moreover, according to the JICS report, some suicides happened in single cells. If the officials at the correctional facility knew that an inmate had a history of psychological problems, why did they put that inmate in a single cell in the first place? She was trying to understand what the reasons for the high suicide rate were.
Mr Misser replied that suicides in correctional facilities were a very big worry. The number of suicides had increased over the last performance cycle. It was a psychological issue. Page 43 of the annual report was a case study involving a 49-year-old inmate. She had had some form of psychosis and the court had referred her to Valkenberg Hospital for 30 days’ observation. However, she had been returned to the centre after only 19 days, and, upon her return, she had swallowed a bottle cap and died when it lodged in her larynx. That could have been an accidental death or a suicide. JICS’s work was to look at such cases in detail after DCS had reported the incidents.
Dr Newhoudt-Druchen said that, in 2020/21, JICS had inspected 136 out of 235 active correctional centres. Did JICS inspect different sites every year, or did it return to the same centres in order to re-evaluate?
Mr Lennard De Souza, head of Inspections and Investigations, JICS, replied that JICS inspected 136 different correctional centres each year. In practice, that meant that it revisited each centre every second year. However, it also made its inspection reports available to its ICCVs, who checked on its behalf.
Dr Newhoudt-Druchen asked what the international norm or standard was for the inmate-to-official ratio. In the context of overcrowding in South African correctional centres, she wanted to understand what the optimal number was.
Justice Cameron thanked Members and said that JICS would take their comments to heart. JICS believed that the Constitutional Court judgement, instructing JICS to become an autonomous entity, was also an invitation to “repurpose” itself in the way suggested by Mr Dyantyi. In the process, JICS would try to challenge and encourage politically difficult decisions, like some of those he had mentioned earlier.
The Chairperson said that when government entities had done their work, it allowed the Committee to do its work. Because JICS had done its work, the Committee was able to think about how to “position” society in order to take correctional services to “the next level.” That was the essence of the issue raised by Adv Breytenbach and echoed by Mr Dyantyi. On the other hand, when the Committee had to start “bickering” with entities over irregular expenditure and so on – when Parliament was forced to do managers’ jobs for them – then the Committee did not have enough time to think about broader, more forward-looking questions. In fact, sometimes these entities put the Committee, to its frustration, in the position of “goalkeepers” – if a goalkeeper left his post because he wanted to score, he made his team vulnerable to counterattack. So the Committee thanked JICS for the way it was doing its work. He said that the ANC, in its study group, had discussed the “doctrinal shift” there had been when South Africa had replaced its Department of Prisons with a Department of Correctional Services. Yet, the study group had asked, how much had really changed? Had South Africa really created a Department of Correctional Services, or was it a Department of Prisons under a new name? The Committee appreciated JICS’s diligent work, and there was a strong correlation between its work and its clean audit – the Committee could see why it had received a clean audit. The Committee could also see the impact on South Africans of JICS’s work, and JICS’s work enabled them to see the gaps in the system.
He said that he had been reading the day before about one of the Committee’s general concerns, which was that the correctional facilities were being failed by the courts, including, he thought, the Mpumalanga and Limpopo High Courts. There were serious doctrinal problems. The Committee should also look at infrastructure, as Adv Breytenbach had mentioned. In connection with Adv Breytenbach’s remark about treating people worse than animals deserve to be treated, he would repeat a story that a former Judge President had told the Committee during Members’ inductions. He had said that there was a Minister of State in a certain country, who had refused a request for more beds for prisoners – he had asked why prisoners needed beds. After a few years, he had lost power, and he had been imprisoned. Of course, he was told to sleep on the floor because, as he had instructed, there were no beds – why did prisoners need beds? One should keep this story in mind when considering the rightful treatment of inmates. Apart from the fact that inmates were human beings, anyone might himself, for one reason or another, end up incarcerated in St Albans. The South African system should be such that everyone was treated humanely, no matter where he was positioned in society. He thought that should be the essence of what drove the proposed workshop.
He thought that the proposed workshop would only succeed if its participants applied their minds very well to the content under discussion. At one extreme in South African society were people who were very “hardened” in their approach to corrections and believed that all crimes should be severely punished. Earlier in the meeting, he had pointed out to Minister Lamola that, because he dealt with both DCS and DOJCD, Minister Lamola was in a good position to start a dialogue that could result in a “doctrinal shift.” He had also encouraged Minister Lamola to consult with JICS, because he knew that JICS had radical views on some of these issues. The content of the decisions had to be correct, because – rightly – they would be challenging some people’s belief systems. It was important to mount this challenge and ask what kind of correctional facilities the country envisaged having. Present in the Committee meeting was someone who had once been an Oxford student and the best LLB student at UNISA – he wrote very well. That student was Justice Cameron, and the Chairperson thought he should also put his thoughts together to assist in this process.
The task was to challenge society to think differently about correctional services – about facilities, the treatment of inmates, and the role of correctional services in reforming its inmates, instead of hardening and permanently criminalising them. After serving his sentence, a prisoner should come out “a better person” – it should even be possible for a former inmate to become president. Therefore, the Committee agreed that there should be a workshop, with the assistance of Justice Cameron. Adv Breytenbach had said that she also had some ideas, and Members should consider their own views, so that the workshop would not be a “socialisation meeting” but would tackle hard issues on the basis of prior preparations.
On the Constitutional Court judgement requiring JICS to become autonomous, he said that he foresaw the need for a “central point of coordination.” Without that, the Minister would side with JICS, while Treasury would have its own views, and the discordance would mean that there would be no successful JICS Bill. All parties had to understand, firstly, the importance of complying with the Constitutional Court judgement, and, secondly, the importance of preparing a project plan, with timeframes, to deal with all the modalities and the respective roles of JICS, DCS, and Treasury. The Committee and Subcommittee should lead that process, to ensure that JICS, DCS, and Treasury began working and established timelines. Parliament had to ensure that the Constitutional Court deadline was met – it had to respect the judicial arm of government.
Finally, he said that another issue for the Subcommittee was the amendments to the Correctional Services Act. As Justice Cameron had said, there had to be adequate consultation on that legislation. The Committee would also want to interact with DCS to establish timelines. Effectively, the Committee’s term would last through 2022 and half of 2023. It had to “get things rolling” now, because in 2022 it had to conclude all the big items on which it wanted to leave a legacy.
The meeting was adjourned.
Magwanishe, Mr GB
Breytenbach, Adv G
Dyantyi, Mr QR
Horn, Mr W
Jeffery, Mr JH
Lamola, Mr RO
Maseko-Jele, Ms NH
Newhoudt-Druchen, Ms WS
Nqola, Mr X
Selfe, Mr J
Swart, Mr SN
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