Political Overview of Annual Reports; JICS & DCS Annual Report 2021/22, with Minister & Deputy Ministers

Meeting report

The Chairperson apologised for the meeting taking place at this time; there was a caucus called, so the Committee had to reschedule. That had inconvenienced both the Minister of Justice and Correctional Services and Judge Edwin Cameron. The Committee was indebted to the Minister and Judge Cameron for agreeing to come at 14:00. The Minister had to reschedule another meeting that was at 14:00.

The Chairperson proposed allowing the Minister to speak, and thereafter Judge Cameron would make his opening remarks.

Adv S Swart (ACDP) wanted to get an understanding of the time allocated, and the time available to engage with the Minister. The Minister might have to leave early.

The Chairperson clarified that the Minister had rescheduled to be there.

Overview of Annual Reports by the Minister of Justice and Correctional Services

Mr Ronald Lamola, Minister of Justice and Correctional Services, welcomed the delegates from the Department of Justice and Constitutional Development (DoJ&CD) to the meeting.

He observed that the departments and entities represented that day made a real and meaningful impact on the lives of people. He wanted to share with the Committee the story of a 44-year-old third-year medical student at Walter Sisulu University in the Eastern Cape. Very often people thought the person with the most money would be the one who won the case or that if one had money, one could buy justice. But, every day, Legal Aid South Africa (Legal Aid SA) showed that that was not true as Legal Aid SA ensured quality access to justice for all through the work they did.

The third-year medical student from the Eastern Cape was married out of community of property and divorce proceedings were pending in the High Court. Her husband is a well-known doctor. She was struggling financially as her husband had stopped supporting her. She had a financial investment with Provisional Provident Society and approached them as she wanted to make use of the monies – an amount of R30 013.40 that had accrued in the account. The Provisional Provident Society paid out the monies but paid it into the account of the husband who refused to pay the monies to her.  She feared that her husband might spend the money and then approached Legal Aid SA for assistance to get access to the monies. Legal Aid SA’s legal practitioner immediately drafted papers for an urgent application to freeze the husband’s account and made all the arrangements to have the matter heard on an urgent basis.

Legal Aid SA successfully argued the matter and the Court granted the order to freeze the bank account until all monies due to the medical student were paid. As soon as the order was served on the client’s husband, he immediately contacted Legal Aid SA and made arrangements to pay the money over to the client. Legal Aid SA made sure that she received the monies that she was entitled to and protected her rights to her property – even though she did not have the funds and the resources that her husband had.

The medical student was not the only one - in the last financial year, 487 552 people benefited from the services of Legal Aid SA legal practitioners across the length and breadth of South Africa This was a 31% increase in clients when compared to the previous financial year.

Legal Aid SA was also named a Top Employer in South Africa for the 13th consecutive year. The entity had continued to prioritise maintaining excellent people practices in the workplace and strove to meet the challenges of changing the world of work to positively impact the lives of its staff.

The current board and executive had been able to sustain the great work of their predecessors. The entity received its 14th clean and 21st unqualified audit opinion from the Auditor-General South Africa (AGSA) in 2021/22.  The decrease in irregular expenditure by R459 291 is evidence of better controls implemented to ensure compliance with legislation and procurement regulations.

Corruption remained a major threat to South Africa. Transparency International made an observation which might be relevant in the context of South Africa, and that was how corruption increased inequality, decreased popular accountability and political responsiveness, and thus produced rising frustration and hardship among citizens, who were then more likely to accept (or even demand) hard-handed and illiberal tactics.

Those tactics shifted the blame for economic insecurity and political decline onto immigrants or other minority groups, and onto economic and political elites, who must, the theory goes, be dealt with swiftly and decisively. The rule of law and liberal values of tolerance and human dignity then become obstacles to needed change.

At the start of the 6th administration, the DoJ&CD set out its stall to strengthen the National Prosecuting Authority's (NPA) human and financial capacity as an instrument to entrench the rule of law and the fight against fraud and corruption both in the public and private sector. The DoJ&CD’s efforts in the fight against fraud and corruption both in the public and private sectors are beginning to yield significant progress and results. In that regard, Minister Lamola wanted to highlight that the Specialised Commercial Crimes Unit finalised 380 cases with 344 convictions – a conviction rate of 90.5%. The number of government officials convicted of corruption increased by 38.4% (from 86 to 119) year-on-year.  The DoJ&CD’s performance in private sector corruption prosecutions improved by 39.5% (from 147 to 205 people convicted).

All the senior vacancies in the NPA have been filled and the next phase is to intensify the skill set of the DoJ&CD’s prosecutors and police officers. Here, it envisioned attracting data analysts, forensic analysts, and cybercrime experts. Progress in the capacity of the NPA to date was demonstrated by several seminal cases which are before the courts for prosecution. Those cases featured prominent South Africans, multinational companies, and recent white-collar crime syndicates.

South Africa’s prosecutors had shown great bravery and tenacity for justice. The effects of corruption in state-owned enterprises (SOEs) could be felt right down to the level of service delivery. Minister Lamola gave the example of the matter of the State vs Moraka and another. Accused 1 was employed by Eskom as Financial Controller for Primary Energy in Gauteng. Accused 2 was a sole member/director of Megra Transport CC. Acting together, accused 1 and 2 submitted fraudulent claims on the basis that Megra Transport CC had transported and delivered coal to Eskom power stations, which was not the case. The total loss to Eskom amounted to R356 million. Both accused pleaded guilty and were sentenced to an effective term of 20 years imprisonment.

The DoJ&CD was tackling domestic violence against women, men or children living in the same domestic unit. Although women and girls were the main victims of gender-based violence (GBV), it also caused severe harm to families and communities as a whole.

The Sexual Offences and Community Affairs (SOCA) Unit of the NPA facilitated access to justice, safety, and protection in response to the needs of GBV victims using legislation, policies, international and regional protocols, and through addressing the infrastructural and resourcing challenges that obstruct the optimal delivery of justice to survivors. This was achieved through the Thuthuzela Care Centres (TCCs), which improved access to survivor support services and victim-centric criminal justice services by being sensitive to and meeting victims’ needs. Five additional Thutuzela Care Centre sites were established during this financial year, bringing the total to 60. During the reporting period, 34 456 matters were reported at the Thutuzela Care Centres. A conviction rate of 76.7% was obtained for cases reported at the Thutuzela Care Centres. Some 201 accused were sentenced to life imprisonment, 106 accused were sentenced to 20 to 25 years imprisonment and 378 accused were sentenced to imprisonment between 10 and 19 years.

A special mention was reserved for all the prosecutors in the matter of S v Nikana – a 36-year-old man from Clocolan was sentenced to six life terms in the Free State High Court after he was found guilty of raping his 14-year-old daughter six times between May and July 2021. The victim lived with the accused, his wife (who is her stepmother) and two other siblings. In May 2021, the accused told his wife that his late brother told him in a dream, “to get rid of the tokoloshe that was inside the victim”. On the same night, the accused raped the victim. The wife tried to reprimand him, but he assaulted her. He threatened to kill both if they told anyone what he did. The last rape incident took place on 25 July 2021. A day later, the accused’s sister visited the family, and the wife told her what the husband had done. The sister reported her brother to the police, and he was arrested.

Cable theft was highly organised and had a significantly negative impact on businesses, communities and ordinary crime committed within cyberspace, where information and communication technologies (ICTs) were used as an instrument, target or means of perpetuating further crimes. It was estimated that cable theft cost the South African economy between R5 billion and R7 billion a year. The NPA obtained 193 convictions from 210 verdict cases, recording a 91.9% conviction rate in cable theft matters. Despite those cases being complex in nature and encompassing a high level of technical evidence, a special focus on the prosecution of cybercrime cases resulted in a high conviction rate of 97.4% (149 convictions from 153 verdict cases).

The cases prosecuted in copper theft and essential infrastructure increased from 409 to 959 in the last financial year. That was an increase of over 500 matters. The NPA was collaborating with other stakeholders nationally and internationally during the phased implementation of the Cybercrimes Act, 19 of 2020. The Act, which came into effect in 2021, would provide guidance and clarity on the identification and prosecution of those matters.

Prosecutions during the current financial year were mostly conducted in terms of common law offences and other existing statutory crimes, where crimes were committed with the use of technology.

Under the auspices of the Financial Intelligence Centre (FIC), the NPA was active in the economy. On money laundering: The NPA had enhanced its focus on addressing money-laundering linked to illegal wildlife trafficking (IWT). The NPA participated in the Financial Action Task Force (FATF) typology study pertaining to that subject matter in 2020, resulting in the release of a FATF report in 2021.

International and Co-operation in criminal matters in Mutual Legal Assistance Matters

The Minister observed that Members wanted to know about international co-operation in criminal matters and in mutual legal assistance matters. One of the legs of the investigation into the Steinhoff matter had been finalised. A Mutual Legal Assistance (MLA) request to one of the foreign authorities was submitted and another MLA, to a different foreign authority, was in the process of being transmitted. In this financial year, the DoJ&CD was addressing the weaknesses in its international cooperation in criminal matters and legislative framework which did not address all the necessary aspects.

A new Bill had been prepared providing for the extradition of persons sought for extraditable offences to and from South Africa to requested states with which South Africa had concluded an agreement and for the surrender of persons sought to international entities having jurisdiction in respect of international crimes (genocide, war crimes and crimes against humanity). The Bill also sought to clarify the roles and responsibilities of the different functionaries and to put procedures in place to expedite extradition requests. It would greatly enhance efficiency in the investigation and prosecution of cases as the jurisprudence had and continues to be developed in that area of the law. The Bill was aimed at ensuring that South Africa was not a haven for criminals or said to be acting with impunity. The Bill had been processed through the relevant clusters and the Department would obtain Cabinet’s approval to introduce the Bill into Parliament.

The DoJ&CD, in the financial year under review, recorded the highest level of performance in four years. The Department’s overall performance was on an upward trajectory, with 79% of the planned targets achieved, compared to 66% in the previous financial year. This was an increase of 24% as compared to the 2018/19 financial year.

Modernising of justice services through the use of digital capabilities continued to be a priority, despite the challenges posed by ageing ICT infrastructure and the ransomware attack. The Department continued to prioritise and enhance the system security and build on a strong foundation of ICT infrastructure.

During the reporting period, the following online services were developed and piloted:
• Maintenance Online Services – piloted at the Branch Court Point (Durban) with walk-in public, utilising kiosks that were set up at the court.
• Deceased Estates and Trusts Online Services – piloted at the Masters Office (Pretoria), with identified trusted agents utilising the online portal.
• Expungement of Criminal Records Online Services – piloted at the National Office Legal Services component, with walk-in public utilising kiosks.
• National Registrar for Sex Offenders (NRSO) Online Services – during 2021/22 – piloted at the National Registrar’s Office, with SACE (South African Council of Educators).
• Civil Online Services – piloted at Polokwane Magistrates Court with identified Legal Aid attorneys that utilised the online portal.
• The Department obtained a qualified audit and the Department’s irregular expenditure was relatively high. The irregular expenditure was driven primarily by the fact that the Department had not been able to obtain a deviation from National Treasury for the work done by the State Attorney for other state departments.

Correctional Services

The Department of Correctional Services (DCS) continued to implement the Self-Sufficiency Strategic Framework across all its regions. It had produced the first annual report of the SSSF and it wanted to urge all people to read the report so that they could have a better understanding of its work as correctional services.

During the 2020/21 financial year, the DCS’s farms created a cost saving of approximately R94 million through internal produce. In the 2021/22 financial year, the saving was R115 million and the projected saving for the current financial year was R163 million. There was a process underway to determine the possibility of expansion of current used land in its farms. The Internal Market Analysis for 2021/22 had been developed to determine the self-sufficiency level of the Department, as it was critical for planning agricultural production.

This was a clear demonstration that the DCS had turned a new leaf and was on a path to create exciting new opportunities for inmates and officials. Often, the Department was told of allegations of corruption and malfeasance in Government, and the good work that it did was often ignored, but its work at DCS spoke for itself. South Africans could speak of a Department that was transformed and would continue with this new approach to ensure that it reached its full potential.

The Department also recorded a second consecutive unqualified opinion where the Auditor-General commended the Department of Correctional Services for submitting financial statements that were free from material misstatements. It remained committed to attaining a clean audit opinion, and Minister Lamola and Deputy Minister Inkosi Patekile Holomisa had impressed upon the National Commissioner to prioritise matters which had been raised by the AG, like irregular expenditure and consequence management.

The Department was also working hard to empower young people. This would enable it to ensure that it broadened opportunities for young people. Currently, it had enrolled 1 032 learners who were currently undergoing training at Zonderwater and Kroonstad Colleges as part of its learnership programme.

Youth appointments were also prioritised for critical and essential posts in the last financial year, and, as a result, 74% of youth were appointed within the Department which was an overachievement against the target of 20%. The Department would continue to prioritise compliance with the Employment Equity (EE) Plan in the filling of posts.

Another matter of great concern to the Department was the committing of crimes by its parolees. Even though most of its parolees complied with their parole conditions and its monitoring officials worked around the clock to ensure compliance, the actions of few parolees undermine its efforts of reintegrating offenders back into society.

The parole review process was underway, and it would also look at ways to strengthen its parole granting processes to ensure that those it released were rehabilitated and abhorred their previous life of crime. The Department would work with different stakeholders, including traditional leaders, to assist it with reintegration of offenders and monitoring of its parolees.

The Department would continue to condemn in strongest possible terms parolees who committed heinous crimes in society. Those were the kind of people who undermined all its rehabilitation efforts and they would be punished severely through the parameters of the law.

However, the Department equally wanted to highlight that there are equally good ambassadors of its parole system, those were parolees who established various businesses and initiatives for their communities.

The Minister also wanted to share with the Committee the stories of two parolees and one ex-parolee, who were having a positive impact on the communities. One parolee was sentenced to twelve years for murder. He started farming in 2018 after he was given a plot by the family around Lebowakgomo. Since then, he managed to employ two community members. He is planting spinach, beetroot, cabbage and carrots. His production had grown to an extent that he was supplying Spar Supermarket in the Lebowakgomo municipality and the Ga-Nkoana suburb.

The second parolee was sentenced to life imprisonment for murder, robbery, theft and possession of a firearm. He was placed on parole in 2019 and he started his bakery business in 2021. His bakery is serving communities around Leeufontein, Ga-Moganyaka and Mamphokgo villages. The ex-parolee has registered a Non-Profitable Organisation (NPO) known as Bashai Ditlou Rams which caters as a Drop-in Centre for the needy and ailing old people of Makgodu Village in Moletjie area. The Centre was situated in Makgodu Moletjie. The Centre had 98 beneficiaries.

The Office of the Chief Justice (OCJ) achieved 87.5% of its annual targets and spent 93.1% of its Final Appropriation. In ensuring an effective and efficient administrative support and contributing towards the MTSF Priority of a Capable, Ethical and Developmental State and chapter 13 of the NDP during the 2021/22 financial year, the OCJ had a vacancy rate of 9.1%, which was below the 10% target set by the Department of Public Service and Administration (DPSA). Subsequently, the OCJ had 48% of women representation on a senior management services (SMS) level and 32% youth representation of the Department’s staff complement.

In ensuring enhanced judicial performance, the OCJ conducted 168 skills-enhancing judicial education courses for Judicial Officers and aspiring Judicial Officers, which was attended by 4 343 delegates.

In ensuring improved court efficiency during 2021/22, 86% of default judgments were finalised by Registrars within 14 days from date of receipt of application; 99% of taxations of legal bills of costs were finalised within 60 days from date of set down and 100% of the warrants of release were delivered within one day of the release issued.

In promoting accountability and fighting corruption, the OCJ investigated 55% of reported fraud cases within 60 working days and conducted 29 awareness sessions on Fraud Prevention and the Anti-Corruption Strategy. 

As part of court modernisation, the OCJ embarked on the ICT infrastructure refresh project, upgrading of End User Equipment project and roll out of Wi-Fi to all Superior Courts.

The 80% overall performance of the DCS in the last financial year was impressive, and the Department had instructed the National Commissioner to look into a few areas of non-achievement so that it could turn around the situation. Performance management was very important and it wanted to see an achievement of all its targets.

The Department remained committed to drawing from the wisdom of the Portfolio Committee in its work, and appreciated the oversight provided by the Committee. It would continue to work with the Committee and when called to account, it would not hesitate to come and appear before the Committee.

Briefing by the Judicial Inspectorate for Correctional Services on 2021/22 Annual Report

Judge Edwin Cameron, Inspecting Judge, JICS, presented.

• Over the course of the COVID-19 pandemic, JICS witnessed impressive measures to address, prevent and combat the spread of COVID-19 within prisons. Chief amongst these were attempts to decrease prison populations and combat overcrowding.
• Unfortunately, these attempts were short-lived.
• While in 2020/2021, the South African prison population contracted by 9%, in 2021/2022 prisoner numbers increased once more, by 1.6%.
• As at 31 March 2022, the total inmate population was 143 244 – this means the national overcrowding rate is now 31.65% (vs the 2020/2021 rate of 23%).
• Our country thus holds the dubious honour of being the country in Africa with the highest number of incarcerated people – and the 12th highest in the world.

• JICS is seeking to co-host a workshop on South Africa’s carceral and penal policies with the Parliamentary Portfolio Committee to begin the urgent task of addressing this problem.

Judge Cameron added that the preceding year (2021) saw a significant easing of carceral conditions because of the release of non-violent offenders. He emphasised that those were non-violent offenders, many of whom JICS felt never should have been incarcerated in the first place.

He added that South Africa’s figures on the number of people incarcerated per 100 000 people were also relatively high. Behind South Africa were countries such as Algeria and Egypt, which had populations over 100 million, but fewer prisoners than South Africa.

Lastly, Members agreed to a reflective seminar to get to the root of the problems. JICS did not believe that overlong sentences assisted in curbing issues such as cable theft, cash-in-transit heists, and GBV. It believed that better efforts could be made, starting with effective crime intelligence, effective follow-up by the Crime Intelligence Division (CID), and effective policing on the ground. Over-incarceration was an ineffective means of dealing with that.

In addition, JICS has serious worries, including:
• Sharp increases in reported incidents (such as hunger strikes, attempted suicides and suicides), coupled with underreporting that undermines JICS’s oversight function;
• Reporting of and DCS response to sexual violence;
• Non-cooperation from the NPA and SAPS;
• The plight of remand detainees in South African prisons;
• Ballooning population of prisoners serving life sentences, with inefficient parole processes.

On the non-cooperation issue, Judge Cameron added that in Brandvlei, a terrible murder was caught on camera. The prosecution had not started and was grinding its way through courts. This was not unique to South Africa – prison departments did not receive cooperation from police or prosecuting authorities anywhere in the world. Derek Chauvin in Minnesota was the first police officer convicted of first-degree murder in Minnesota. That was an indication of how correction and police officers were often not at the forefront of “prosecuting and policing zeal”.

Judge Cameron added that remand detainees comprised a third of the South African prison population. Of these, at least 2 724 had been given bail, but could not afford it. JICS called such people “prisoners of poverty”.

In 1995, there were 400 people serving a life sentence. Currently, there were nearly 18 000 people serving a life sentence. This was an indication of the “gross sentence inflation”, which JICS believed was misdirected. There were other ways to deal with murders, rapists and violent offenders.

• Positive developments over the period include:
• Full resumption of visits and unannounced inspections;
• Increasing public debate on the best ways to curb crime and enhance public safety;
• Some (but unfortunately not enough) progress towards realising JICS’s full independence;
• JICS-National Council for Correctional Services (NCCS) subcommittee and engagements on the lifer parole process;
• Progress towards addressing unlawful use of extended solitary confinement;
• Just Detention International training workshops on sexual violence with JICS Independent Correctional Centre Visitors (ICCVs);
International seminar on Excessive Use of Force in Correctional Centres: The Role of DCS, JICS and Civil Society;
• JICS book drive: “Books for dignity”;
• Countrywide roadshow to engage with ICCVs;
• Commitment to reporting on female inmates, infants and LGBTQ+ inmates.

Ms Emerentia Cupido, Deputy Director: Communications and Spokesperson, JICS, explained that
inspections of correctional facilities had financial and other implications, and it was for that reason that the National Inspection Plan formed part of the JICS strategic planning. Factors such as logistics, budgetary constraints, and availability of human resources were considered in the strategic plan.

JICS was able to conduct the 136 planned inspections. With the Abasholi Project, a new initiative conducted by JICS management as an ad-hoc task to increase inspections, JICS conducted 36 unannounced inspections. This resulted in 172 inspections conducted, thus increasing the inspection rate to 72%. Of the 172 inspections over the reporting period, 9% of the correctional facilities were rated unsatisfactory. 81% were rated satisfactory, and 10% were rated good.

Ms Cupido added that JICs was severely restricted in its investigation functions, and employed only eight inspectors, who also doubled as ad-hoc investigators. Most of the cases that JICS investigated during the performance cycle related to violence. The increase of violent incidents where DCS officials were implicated in the death of inmates, as reported in the previous annual report, continued to rise. In the previous performance cycle, JICS investigated five cases of the alleged homicide of inmates by DCS officials. The number of inmates who allegedly died at the hands of officials increased to six, from five. Two inmates died as a result of being shot by SAPS officials during an attempted escape at the Umzinto Correctional Centre during the July 2021 unrest in KwaZulu-Natal (KZN).

A total of 46 investigations were mandated. JICS does not employ specialised investigators, nor does it have an approved directorate to deal with investigations. Those were carried out on an ad-hoc basis by inspectors and JICS management.

There were a total of 471 complaints. The number of complaints increased by 132 as compared to the previous performance cycle. Complaints were received from both internal and external sources. Internal sources referred to JICS ICCVs, inmates, their legal representatives, and families who lodged complaints to JICs. External sources referred to other oversight bodies such as the Public Protector, Legal Aid SA, and the South African Human Rights Commission (SAHRC), etc.

Ms Cupido said that assaults, deaths, segregation, mechanical restraints and use of force are collectively termed “mandatory reporting matters”. There were discrepancies in the statistics that DCS had versus those that JICS had. The new eCorrections system that had been designed would allow Heads of Centres to report mandatory reporting matters to the Inspecting Judge. The system was currently being rolled out, and JICS hoped that that would correct the discrepancies that had plagued its reports over the last few years.

A total of 218 ICCVs were deployed to correctional facilities across the country, and attended to a total of 51 438 general and urgent complaints.

JICS overspent on Standard Chart of Accounts (SCOA) items by 6.59% of the total budget due to the compensation of employees (9.56%), goods and services (8.29%), and transfers and subsidies (301.24%). This was due to insufficient allocation of the compensation of employees (CoE) budget allocation for the financial year, unilateral budget cuts, non-pensionable allowance payments, etc.

JICS’s expenditure report was R83 074 198.65, while its budget allocation was R76 140 000.00.  The CoE costs increased from R59 918 697 to R69 288 648. Ms Cupido added that the Acting National Commissioner confirmed in writing that an amount of R3.071 million would be shifted to JICS’s budget to cover the shortfall on the CoE budget. JICS was still awaiting the transfer.

Centralisation of Personal and Salary System (PERSAL) systems and functions at the DCS head office continues to be a challenge (e.g. creation of positions hampers the service delivery targets of JICS). Currently, contract workers are paid periodically, which is unauthorised, and the creation of additional posts is dependent on DCS, resulting in different salary payment dates (i.e. not on the last day of the month). DCS was approached in December 2020 for the creation of additional posts. The creation of these posts will eradicate the irregular payment of contract workers in JICS.

Ms Cupido added that the emphasis of JICS’s communication and media activities was on impact rather than quantity. In light of that, JICS aimed to engage with the media continuously, provide fast responses to media requests, stay updated with what was happening in the sector, and provide information that was relevant to the public and staff. JICS was also cognisant of the implications that the Protection of Personal Information Act (POPIA) and the Promotion of Access to Information Act (PAIA) hold on media relations.

As the topic of risk assessment was mentioned in a previous Committee meeting JICS amended its risk assessment policy to facilitate a process that enabled management to assess each identified risk at an inherent level by determining its likelihood and impact. JICS included pre-emptive processes to ensure that the action plan for each risk factor could be implemented fortuitously to mitigate harm. 

(See Presentation)

Discussion

Adv G Breytenbach (DA) asked the Minister and Justice Cameron about remand detainees. It was self-evident that remand detainees could be dealt with, particularly the people that had been granted bail but could not afford it. Members had many suggestions as to how such people could be dealt with. She asked if that matter could be put on the menu for the workshop with JICS and the Committee and come up with an actionable plan. She had many ideas, as did other Members and Justice Cameron. She was sure that the Minister had ideas to solve the problem as well. If all stakeholders could not come up with a workable solution between them, then it was “a shame” on them. There was a lot of goodwill in the profession, and she was quite sure that all could work out a system to deal with remand detainees. She suggested a “night court system” to deal with those individuals at minimal cost and reduce the number of remand detainees exponentially.

On JICS becoming an independent entity: What was the progress on that, and what were the hold-ups, so that the Committee could address those at its workshop?

Adv Breytenbach had many questions for the Minister about his high-level overview of the DoJ&CD. With the greatest of respect, she felt that it did not do justice to the state of the DoJ&CD. The state of the Department was not all “moonshine and roses”. Bearing in mind that both the Minister and Justice Cameron were otherwise engaged, she would submit her questions to the Minister in writing.

Adv Swart observed that Judge Cameron referred to an application for an extension on the Sonke Gender Justice issue. The challenge was that Parliament was instructed to amend particular bills. In previous extensions, in that case with the New Nation Movement matter, the Court made it very clear that Parliament should have introduced a bill itself. The Committee was faced with Constitutional Court (ConCourt) deadlines. The Minister may have been present when the application for an extension was refused. The Committee had a dilemma – in the case of the Sonke Gender Justice matter, there would be a gap in the law. If the Committee did not pass the Bill (on which it would be almost impossible to give proper public participation), then it had a dilemma. When was it anticipated that that application for an extension would be heard? The Committee had a number of ConCourt deadlines that it had to meet. He had raised the same issue when the Smit decision was dealt with, namely that it was unacceptable for Parliament to be placed under such pressure when the Executive sat for so long for whatever reason to introduce bills to the Committee. There was a mechanism in place to deal with that, but perhaps Judge Cameron could help the Committee to deal with that issue, given his experience on the bench. What happened if the extension was not granted? The Committee fully supported the Bill to grant JICS independence, and it was “sad” that it had taken so long.

On remand detainees: There were various provisions in legislation to deal with applications that could be brought to court to release remand detainees whether it related to bail, or the conditions in prison. An example was section 65(e) of the Criminal Procedure Act. It seemed that over the many years that the Committee had been raising the issue, those provisions were not being used sufficiently, even though they existed in law. It was unacceptable that there were 2 700 remand detainees. The bail was available, but it was costing the state more to keep those remand detainees, many of whom could possibly be not guilty.

Adv Swart was appalled by the murder caught on camera seven years ago. It was unacceptable that JICS should not have the cooperation of the NPA and the police when it came to those matters. He wanted to commend Justice Cameron and the JICS staff for the “incredible work” that they were doing.

The Minister had addressed an investment conference and referred to a multidisciplinary anti-corruption agency. What progress was there in setting up the agency? It was very important given the state capture and widespread corruption that took place, and that was continuing to take place. Would that agency be given Chapter Nine status?

Adv Swart asked about the imminent possibility of greylisting by the Financial Action Task Force (FATF), based on the mutual evaluation report. The Minister of Finance and the National Treasury (the Treasury) was dealing with a number of bills. Those bills only addressed 14 of 20 areas of weakness identified in that mutual evaluation report. The consequence of greylisting would raise the country’s risk profile to almost unacceptable levels and would have a devastating impact on financial services and the economy. One of the FATF’s points in its October 2021 report was on the prevention, monitoring and prosecution of terrorism finance, where South Africa got the lowest possible score. The assessment stated that South Africa had convicted one person for terrorist financing since the last mutual evaluation. He asked the Minister to brief the Committee as to what steps were being taken to improve future evaluations and to avoid that greylisting, and the devastating impact it would have. One part dealt with the financial amendments that were taking place. The second part was the investigation and prosecution of all those matters to avoid the greylisting.

An issue highlighted by the AG was the contingent liabilities for claims against the state. The Committee was aware that there was a policy on management of state litigation contingent liabilities that had been put in place, and that was at the time of the end of the financial year. It seemed that the contingent liabilities for cases against the state were largely unknown. It was estimated at R146 billion, and it could be more. Could the Minister give the Committee the progress on the implementation of the management of state litigation and management of contingent liabilities, which had been highlighted in the AG’s report.

On state capture: The President was going to submit the implementation report following the recommendations of the Zondo Commission “any day now”. Part of that had been the ongoing and previous briefings by the NPA and by the Minister, where it was indicated that steps were already being taken to identify, and further investigate and prosecute, the persons involved. Included in that were the extradition processes. He asked the Department to give the Committee an update on the extradition process. Members would also engage with the NPA as to the implementation of the recommendations from the Zondo Commission, particularly when it came to the steps taken. He had alluded to the anti-corruption agency, but any further steps and updates on the extradition process would be appreciated. Specifically, he asked for updates on the extradition process as it related to the Gupta brothers, who were still in prison (in the UAE). Was there an idea of when that process would be completed?

Ms Y Yako (EFF) agreed with Adv Breytenbach that the Minister had done a very broad overview. This overview was also a “very vague, unrealistic, and almost false” narrative of what the DoJ&CD looked like. The previous day, the Committee received a presentation from the AG, which spoke of billions in irregular expenditure. This was a historical issue. There was a new amount of “almost R1 billion” in irregular expenditure. That did not speak to a well-functioning department. The Committee had seen for itself on oversight visits that there was nothing in sync, be it between the DoJ&CD and the DCS, between the OCJ, and others. It did not seem like the entities were in sync, nor did it seem like things were working. There did not seem an honest approach towards saying how things would be fixed.

The country was sitting with a problem where most people could not afford lawyers. It was her opinion that the more money one had the better justice one would find in this country. How was the Department compensating lawyers working for Legal Aid SA, e.g. giving them the capacity, tools, salaries, and a working environment that was conducive to doing their work? Those lawyers were dealing with a big workload.

There was an astounding amount of irregular expenditure. Such expenditure also dealt with the supply chain and that led to corruption. “It seemed like it was embedded within the Department.
What conversations had the Minister had with the Department on consequence management? What was he planning to do?

Ms Yako addressed a question to Judge Cameron. The committee's oversight visits had focused on correctional service centres. The conversation on overcrowding and the capacity of prisons to hold space for prisoners and provide rehabilitation had been ongoing since she had joined the Committee. Seeing that the Committee had observed that overcrowding came from the remand detainees, what conversations had the Minister had with the judicial system? The Committee had observed that there was no linear approach when it came to prisoners. For example, a person went into the prison system because they were arrested for stealing bread. That person's bail was then set at R2 000. A person could not afford R2 000 bail if they stole bread. The situation was then adding to the number of people in prison. What conversations had been had about trimming down the prison population, and understanding the difference between various crimes? For example, there were violent crimes in the country, and “most of those people” were let go to perpetrate crimes again. On the other hand, there were people in prison who had committed relatively minor crimes, where they could be let go and let back into society to be rehabilitated there. There was a backlog, and there was a prison system that was very overcrowded. Had the Department had conversations with judges, magistrates, etc. to say what was to be done so that all were working with each other in a way that did not put a strain on one particular element?

Dr W Newhoudt-Druchen (ANC) observed that when the Committee did oversight visits it saw the ageing infrastructure. The Committee wanted both the Minister of Justice and Correctional Services and the Minister of Public Works and Infrastructure to come before it. She asked if the Minister had met with the Department of Public Works and Infrastructure (DPWI) and if anything had been discussed about what would be done about ageing infrastructure.

Dr Newhoudt-Druchen asked about the complaints handled by ICCVs. 18 000 were listed as “other”. She asked for a breakdown of this. The second-highest number was over 6 000 with regards to transfers. Had the transfers been dealt with? Had that number been reduced? The third highest was with regards to healthcare: What were the complaints regarding healthcare, and had those complaints been dealt with? He asked if the Department could perhaps respond to those questions as well.

She said that the increased number of suicides was very concerning. Did JICS, the Minister, and the Department have any discussion on doing research into why there was an increase in the number of suicides? There had been cases where people overdosed on medication. Where did people get access to such a large amount of medication? Medication was supposed to be given daily by the DCS, so where did inmates get access to such a large amount that they would be able to overdose and commit suicide?

Dr Newhoudt-Druchen spoke about an incident where a mentally ill person was incarcerated. He did not pay his bill at the restaurant, and he was kept in prison. His father tried to get him out because he needed medication, and the family needed to handle the mental illness. The justice cluster had been discussing people with mental illnesses who were unnecessarily imprisoned instead of alternative avenues where the parents could provide proof of mental illness. Imprisoning such people would add to the number of remand detainees, and add to the overcrowding in prisons as well. She asked that mental illness also be treated with sensitivity when it came to incarceration.

[Ms Newhoudt-Druchen wrote in the chat box: Why can't those who can't afford bail be given supervised community service equal to the cost of their punishment?]

[Judge Cameron replied: With respect, that's an excellent idea, Ms Newhoudt-Druchen; it'll require a savvy redirection of resources from misdirected lock-them-up-and-throw-away-the-key approaches – we do have the resources, but (those) should be better directed.]

Mr J Engelbrecht (DA) asked about parole system reform. What involvement would there be from the Committee's side in terms of the process of reform? What timeframes was the Committee looking at? Everyone had heard about the reform of the parole system for quite some time. He had posted written questions to the Minister to get some more detail because there were a lot of things that were not clear. Firstly, the methodology used in assessing what was wrong with the current system. How was it done? Only after assessing what was wrong, could one change the system to mitigate those things. Would the Committee receive a progress report, or would the Department come to the Committee once the reform process was done? The Committee's involvement in this process was unclear.

On remand detainees, or “prisoners of poverty”: Could the Department look into technology where there is a device fixed on someone's ankle that cannot be tampered with? Such a device could give remote access to people’s movement for people who committed lesser crimes since the device could be very useful in reducing the number of remand detainees. The same technology was being used internationally when it came to parolees, where one had the ability to remotely verify where people were. If there was an attempt to tamper with the device then an alarm goes off, and one would know via GPS coordinates exactly where such an individual might be. It could be used to prevent parole absconders. Reports had shown that there was a large number of parole absconders, who were costing the Department lots of money to trace and re-arrest. Such technology had been in use for “almost 20 years” internationally.

JICS’ Response

Judge Cameron thanked the Committee for its focus on the prisoners of poverty. There were indeed ways of dealing with that issue. That was why JICS had asked for a seminar. South Africa was spending R25 billion on the DCS budget which was holding officials responsible for implementing a system that they did not create. There were problems at Pollsmoor where officials were complaining about the degraded infrastructure that was a danger for them. Resources and efforts were being misdirected.

On the JICS holdup: Judge Cameron said that Parliament was off the hook. The application would be made by the Minister and his Department. JICS would be served as a respondent. Judge Cameron strongly felt that JICS could have had the matter wrapped up if it had the funding. JICS wanted to gain the independence that the Constitutional Court required it to have. JICS got approval as an autonomous Government component, and it went through all the processes of all the ministries and departments. Then someone came up with the idea that JICS should be folded into the SAHRC, and that that would save money. That idea came from the Treasury. This was “a daft idea”. Since he was a retired judge, he felt that he could be a bit outspoken. Comparatively, JICS was not asking for a lot out of the 25 billion budget. It was asking for approximately R15 million extra a year over three years. That was where his affidavit would place blame for the holdup.

Judge Cameron observed that there was a paradox where white-collar criminals and others who had committed serious crimes got away with “outrageous infractions of morality”, and ordinary people did not get away with crimes.

Mr Lennard De Souza, Head of Inspections and Investigations, JICS, said that transfer complaints was always the “number one complaint” because inmates wanted to be close to their homes. The “other” category included those complaints that did not fall into the rest of the categories. E.g. Clothing, bedding, toiletries and related things.

Ms Thembelihle Ngema, Director: Legal Services, JICS, observed that JICS did not have the capacity to do research into why there had been an increase in suicides in incarceration. This issue had been a concern to JICS because the number of suicides in correctional centres was something it could look into, and try to look at the main reasons for suicides in correctional centres.

Judge Cameron added to Ms Ngema’s response. Those were all danger signals – the number of assaults, the number of suicides, official on-inmate and inmate-on-inmate assaults. These were danger signals of the unsatisfactory state of correctional centres. That was not the fault of correctional officials but was the fault of the DPWI, which had not been efficient and responsive in dealing with infrastructural and other problems. There was the underlying problem of the structure of the carceral policy, which led to overcrowding. With suicides, those were people in utter despair and were signalling the danger of the conditions inside. 

Mr De Souza observed that with medication used to commit suicide, JICS was also asking the question of where inmates got the medicine because it was usually medicine that was prescribed to inmates, such as antiretrovirals (ARVs). JICS was told by the nurses that it was just like any other clinic, in that inmates were getting a week or month’s worth of medication. Inmates then had the responsibility of taking the medication themselves.

Further discussion

The Chairperson asked about a bill that dealt with people who had paid fines and had criminal records during the Covid-19 lockdown period. How far was that bill? The Committee was hesitant to process that bill when Covid-19 infection rates were still very high. It was now time to ensure that the Committee processed that bill so that people who paid fines could have their criminal records expunged.

What progress had been made in dealing with the issue of the Information Regulator? There was the issue of benefits to members of the Information Regulator. There was also the issue of the listing of the Information Regulator. The Information Regulator found it very difficult to operate under the circumstances when it was just viewed as a part of the DoJ&CD. It was creating operational problems for it.

What were the plans in place to deal with outstanding ConCourt deadlines, especially those next year, so that Parliament got those bills on time so it could meet the deadlines? Parliament would be prioritising those court judgements where there were no read-in provisions. If such bills were not passed by Parliament, there would be a gap in the law. Parliament would then follow with the judgements that had read-in provisions, because it was the legislature, and needed to pass laws. Parliament would like a situation where it did not get bills one month before the ConCourt deadlines. In situations where the work was too much, how could the Committee coordinate with legal services, the DoJ&CD and the DCS so that it could have some of those bills processed as Committee Bills? The Committee felt that the JICS Bill might need to be processed as a Committee Bill. Between the Treasury and the Department, it might take “many months” before the Committee could receive the JICS Bill.

The Chairperson observed that the Information Regulator wrote a letter to the Treasury and never received a response. No South African should be treated that way, especially an entity that was created to be independent. The Information Regulator was writing to the Treasury to raise serious issues which affected its work and in turn service delivery. Not being responded to was “very serious”.

Department’s response

The Minister wanted to draw the Committee’s attention to the fact that the OCJ achieved 87.5% of its annual targets and spent 93.1% of its final appropriation in ensuring effective and efficient administrative support and contributing towards the Medium Term Strategic Framework (MTSF) priority of a capable and ethical developmental state. During the 2021/2022 financial year, the OCJ had a vacancy rate of 9.1%, which was below the 10% target. Subsequently, the OCJ had 48% representation of women at SMS level, and 32% youth representation in the Department staff complement. In ensuring enhanced judicial performance, the OCJ conducted 168 skills-enhancing judicial education courses for judicial officers and aspiring judicial officers. This was attended by 4 343 delegates. In ensuring improved court efficiency, during the 2021/2022 financial year, 86% of default judgments were finalised by the registrars within 14 days from the date of receipt of the application. 100% of warrants of release were delivered within one day of release.

On irregular expenditure: The Department was dealing with a historic case, where the contract was awarded in 2016. This case was deemed irregular due to three service providers submitting fraudulent Unemployment Insurance Fund (UIF) certificates and an invalid provident fund certificate. There was a discussion between the Department and the Treasury on the appropriate action to remedy the situation and to look at all available avenues, including looking at criminal matters. Hopefully, the Department and the Treasury would conclude that discussion soon.

On the deviation from supply chain management processes when procuring outsourced legal services: This deviation was R2.37 million. The Department implemented a procurement process to comply with the Public Finance Management Act (PFMA) requirements, until such time that the framework contract with the Treasury could be finalised. There was also a R7.8 million deviation involving offsite storage and library services. That matter was currently under determination for referral to the Treasury for condonement.

On remand detainees: The Minister agreed with Members that there were various options that the Department could look into. The Department did look into section 49(g) of the Correctional Services Act and section 63(a) of the Criminal Procedure Act, which both related to the reconsideration of the bail amount. There was a project that the Department undertook, where remand detainees would appear before the magistrates for reconsideration, etc. Some were released, and some were not released, because magistrates were reluctant to reduce the amount. Magistrates were of the view that once they had made a decision on the bail amount, it was a bit difficult to relook at the amount. The Department also had engagements with the NPA under Adv De Kock. The Minister agreed that more could be done, so the Department remained open to that suggestion. If there were any suggestions as to what else could be done, the Department was open to looking at those. The Department would look at such suggestions favourably, so that it could help with the issue of the remand detainees, including what Judge Cameron had said.

On the issue of the JICS Bill: The Department agreed with the Committee on the procedure and process to allow JICS to be autonomous. The allocation was not with the Department, and when dealing with that Bill, the Treasury had to concur on the amounts that the entity needed. The Department had finally reached a compromise with the Treasury on the way forward with the current Correctional Services Amendment Bill, which the Department believed would solve that challenge temporarily, while the Department was looking at the long-term solution to the JICS Bill. The Department would leave it to court for its indulgence on the matter.

On the multidisciplinary anti-corruption agency: It was something that was being discussed within the Department and the Presidency. The agency would look at some of the issues that were being considered in response to the recommendations of the Zondo Commission. On whether the agency would be a Chapter Nine institution or part of the NPA, the Minister said that that would be raised as the Department discussed the format of that agency. From the Department’s side, it was of the view that the agency would be an institution within the NPA. There were NGOs and civil society groups that were of the view that the agency should be a Chapter Nine institution. For the Department to be able to immediately implement that agency, it was of the view that it may have to look at bringing those powers in the NPA Act that would enable the housing of the institution within the NPA while it debated the long-term plan. The decision on the format of the agency would have to go through the Cabinet and public consultations.

On greylisting: It was an issue of concern to the Department. There were a number of things that had been done to try and avert the possible greylisting. For example, the NPA had created an anti-money laundering desk, comprising representatives from the various business units in the institution. The international cooperation unit processes had been improved in respect of referrals relating to foreign predicate offences by prioritising managing and monitoring such cases. Staff capacity had also been improved. Mutual legal assistance requests on state capture investigations were made to several countries in 2018. Those countries included the USA, the United Arab Emirates (UAE), India, Canada, the Netherlands, and China. In respect of state capture matters relating to the UAE and India, the requests had been prioritised as enormous amounts of money and persons of interest were reported to be in those countries. There was also an extradition request that had been submitted for persons of interest in the UAE, and the Gupta brothers were still in custody. The Central Authority was in constant engagement with the UAE authorities in the processing of the matter. It was being processed by the Central Authority in the UAE. The Department was hopeful that the matter would soon go through the UAE’s court processes, which the Department would not have control over. There was mutual cooperation between the two states on the matter. The two persons of interest were still in custody, and the Department was hopeful that the matter would go through the courts in the UAE, which would then allow the Department to give proper feedback. The NPA was also pursuing seven foreign bribery matters wherein Mutual legal assistance requests were sent to the foreign authorities’ outgoing requests. Lastly, the Asset Forfeiture Unit had, since 19 November 2019, pursued cases of foreign predicate offending relating to charges of fraud, which was one of the focus areas in terms of South Africa’s risk assessment. The Department believed that there had been efforts made by South African authorities to avoid the greylisting, and those would be submitted when the assessment happened. The Department was also in the process of amending the Trust Property Control Act, which was coming to the Committee. That was one of the issues raised by FATF. All of those were to show South Africa’s commitment to dealing with all those issues of organised crime, issues related to terrorism, and the protection of constitutional democracy. The Cabinet approved the Amendment Bill that came through the Police Civilian Secretariat. There were also “many other bills” that were in the Department of Finance that had also been processed. The NPO Amendment Bill was being processed via the Department of Social Development (DSD). There were a variety of bills coming through to respond to that challenge.

On the management of the contingent liability against the state: The Minister confirmed that the amount was almost R146 billion. That day, the Cabinet Committee on Justice and Crime approved the State Litigation Strategy. He had also approved the policy on the management of the contingent liability, which would address all the issues that the AG had raised, such as: The coordination of various government departments and the State Attorney to quantify the exact amount; and the management of the whole process. Such issues would be guided by that policy, and the Department was hopeful that in its meeting the following week, the Cabinet would be able to approve that policy. In that way, the Department would be able to respond to that issue. The Committee could also request the Department to go into detail as to what was contained in the policy.

On the implementation of the Zondo Report: The President would report on that. The Department had already provided support to the NPA and the Investigating Directorate (ID) to be able to respond to the recommendations that related to criminal prosecutions and investigations.

On the overview being “vague, unrealistic and false”: The Minister felt that this view was “extreme”. The Department had no intention of giving false information to the Committee. Its intention was to give what was accurate. The Chairperson had said that the Department must provide an overview. It had done so in order to allow the Committee to engage with the Department on the issues that it dealt with.

On Legal Aid SA’s employee salaries, tools of the trade, etc.: Legal Aid SA was rated as one of the best employers in South Africa, as well as one of the best law firms. The issue of salaries did come up from time to time. There had been engagements with employees because of the fiscal challenges that the Department was undergoing. Such challenges did not only affect Legal Aid SA, but also all state officials, and the salaries of all state officials. There was ongoing engagement in that regard. Legal Aid SA remained committed to engaging in mutually respectful manner with the employees, and to being able to respond to their issues in a fiscally sustainable way.

On ageing court infrastructure: The Department had started discussions with the DPWI to devolve some of the powers, to enable both the DoJ&CD and the DCS to do some of the basic maintenance in the courts. There was now some agreement between the Department and the DPWI, and capability and capacity was beginning to be built to deal with that maintenance.

On the review of the parole system: It was being done by the Department of Planning, Monitoring and Evaluation (DPME), which would give the Department an evaluation and advice on how it could review the system so that it was responsive and aligned to the current societal challenges, as well as the issues of non-compliance.

On using technology such as ankle trackers: The Minister observed that the people in remand detention were in custody; they were in the cells. The Department could only look into those detainees who made bail. It could not have that particular technology system, and perhaps it related more to the parole system. Members were aware that the Department once had that system, but there were challenges with the contract. There was work happening in the Department and some discussions with the Council for Scientific and Industrial Research (CSIR). When that comes to fruition, the Department could come back to the Committee to say what direction the Department would take. The CSIR said that it had some measures that would help with that kind of technology.

On the bill to expunge criminal records during COVID: The Judicial Matters Amendment Bill would address that issue. The Bill was going through the Cabinet processes and committees. The Minister hoped that the Department would have that Bill before the end of the current quarter.

On the ConCourt judgements: The Department took note of the points that the Chairperson raised. The Department would look into those matters.

The Department would respond to the questions on the Information Regulator in writing, so that it could investigate further the issues the Chairperson raised, particularly the letter that was sent to the Treasury that was not responded to, and the issue of the listing. It would also look at the benefits and the conditions of employment for the members of the Information Regulator. The Department had been engaging with the Information Regulator, particularly on the benefits and conditions of employment. The Minister requested that he be allowed to respond in writing on that matter.

The Chairperson asked about the AG report. The AG said that based on the audit outcomes of the DoJ&CD and the SAHRC, the credibility of the reported performance information was found to be questionable. Therefore, the reported target achievements might not be a true reflection of the actual performance. He assumed that the Minister had discussed that matter with the Executive Committee (Exco). Did the Minister have an opportunity to discuss the issue of performance tasks with the Exco?

The Minister replied that the Department did discuss issues of performance. There had been improvement, but there was still a lot that needed to be done. He asked if the Chairperson was asking about the DoJ&CD or the SAHRC.

The Chairperson confirmed that he was asking about both the DoJ&CD and the SAHRC.

The Minister observed that there was a discussion about performance, and there was commitment to improve. There had been clear indications that there had been some kind of improvement from the last performance indicators and outcomes. There was credible information that had been provided to back up the outcomes.

The Chairperson said that the Committee would also raise the issue of performance with the Director-General (DG), the reason being that that was an annual performance report, and thus the Committee was required to reflect on the performance targets. The Committee was required to give the Minister and the DG an opportunity to respond to questions about the contents of public documents.

Briefing by the Department of Correctional Services on the Annual Report

Mr Makgothi Thobakgale, Acting National Commissioner, DCS, introduced the presentation. The DCS had been listening attentively to the discussions in the first phase of the meeting. The DCS also observed the discussions between the Committee and the AG the previous day and it was also prepared to provide responses to the issues that came up in that engagement. 

Mr KJ Katenga, Chief Deputy Commissioner: Strategic Management, DCS, presented the overview of performance.

Under Programme 1: Administration, eight out of 14 annual targets were achieved, and six targets were not achieved.  Under Programme 2: Incarceration, four out of the seven annual targets were achieved, and three targets were not achieved. Under Programme3: Rehabilitation, eleven out of the eleven annual targets were achieved. Under Programme 4: Care, seven out of the seven annual targets were achieved. Under Programme 5: Social Reintegration, six out of the six annual targets were achieved.

Mr Katenga added that most of the targets that were not achieved were under Programme 1, and the next highest amount of targets not achieved was under Programme 2.

In the 2021/2022 financial year, 80% of annual targets were achieved, and 20% of targets were not achieved. Out of 45 annual targets, 36 were achieved, while nine were not achieved.

Targets Not Achieved During 2021/2022 Administration

Programme 1: Administration

Under sub-programme: Human Resources (HR), the following targets were not achieved: Percentage compliance to the Employment Equity (EE) plan for SMS (women); and percentage compliance to the Employment Equity (EE) plan for SMS (people with disabilities.

Under sub-programme: Finance, the following targets were not achieved: Business case for revenue generation and retention mechanism. Mr Katenga added that in the current financial year, the Treasury had since approved that the Department could retain 100% of all the revenue that it generated from the various self-sufficiency endeavours it was undertaking.

Under sub-programme: Information Technology, the following targets were not achieved: Number of sites where Mesh network and integrated security system are installed (ISS); and percentage of Information Systems (IIMS) implemented as per the Master Information Systems and Security Technology Plan (MISSTP).

Under sub-programme: JICS, the following targets were not achieved: Percentage of correctional facilities and PPP's facilities inspected on the conditions and treatment of inmates.

Programme 2: Incarceration

Under sub-programme: Security Operations, the following targets were not achieved: Percentage of confirmed unnatural deaths in Correctional Facilities.

Under sub-programme: Offender Management, the following targets were not achieved: Percentage of overcrowding in correctional facilities in excess of approved bed space capacity; and Percentage of offenders’ profiles approved for placement by the Correctional Supervision and Parole Boards (CSPBs).
Summary of Corrective Actions

-The Department to monitor compliance with the EE Plan for the 2022/23 financial year to achieve the set targets for SMS women and people with disabilities.
-The draft business case for revenue generation and retention mechanism to be guided by the feedback from the National Treasury and finalised in 2022/23.
-The budget for the procurement of mesh network and integrated security systems to be made available in 2022/23 so that the project can be expedited.
-Implementation of the co-sourcing strategy to fast-track the implementation of IIMS as per MISSTP.
-Continuous monitoring and supervision on the implementation of the Unnatural Death Prevention Plan, random surprise searching, visibility of patrol officials and effective handling of inmates’ complaints and requests.
-Implementation of the Overcrowding Reduction Strategy focusing on the use of alternate sentencing will further assist in addressing the overcrowding challenge.
-The Department to ensure compliance with policy procedures as well as the effective functioning of governance structures (Case Reviews Teams, Case Management Committees and Quality Assurance Teams) through the involvement of role players.

In the 2016/17 financial year, the DCS’s area of qualification was around Capital Work-in-Progress. In 2017/18, the area of qualification was Commitments; in 2018/19 it was Commitments and Irregular Expenditure; in 2019/20 it was Irregular Expenditure; in 2020/21 there were no areas of qualification, and in 2021/22 there were no areas of qualification.

In 2020/21, there were 148 audit findings, and in 2021/22 there were 130 audit findings, which was a 12% decrease.

Overview of the Audit Outcomes for 2021/2022
Mr Lebogang Marumule, Acting CFO, DCS, presented.

-The Department’s overall audit outcome remains an unqualified opinion with findings.
-There has been a noticeable decrease in the number of audit findings from 148 findings in the 2020/21 financial year to 130 findings in 2021/22, i.e., a decrease of 12%.
-There were no material findings on the Finance Statements and Performance Information. This indicates a fair presentation and the absence of material misstatements in the financial statements; useful and credible performance information for purposes of reporting on predetermined performance objectives.
-Matters of Emphasis outlined in the Audit Report are due to the uncertainty of the outcomes of exceptional litigation, material findings on SCM relating to splitting of orders, consequence management of irregular, fruitless and wasteful expenditure
-The Annual Performance Report was adjusted for the indicator of the number of infrastructure contracts completed from 5 completed infrastructure projects to 6 completed infrastructure projects.
-In relation to the Information Technology (IT) governance, there was minimal progress made in addressing prior year audit findings. The direction and oversight of IT governance was not adequately and effectively maintained in some instances; various positions on the organisational structure were vacant; there was a lack of monitoring process for software licenses and for the Electronic Monitoring project.

Areas of Improvement for the 2022/23 Financial Year

Material Non-compliance
An Investigator was appointed by the Accounting Officer on 7July 2022 to investigate the allegations of material irregularity in relation to payment of interest on court judgement not paid/settled within 30 days. The investigation is expected to be finalised in 90 days.

Mr Marumule wanted to give context on the matter of material irregularity. Out of the R76 million of the material irregularity that had been paid, R1 million of that amount was the amount that the AG raised as a matter of material irregularity for payments that were not made within 30 days. Over and above that, there was also the question of whether the report was submitted as per the commitment from the National Commissioner. There was an investigation that had been undertaken. The report had been submitted, and the Department would take action on the report based on the findings raised on material irregularity.

Procurement and Contract Management
The Department has secured an exemption from the National Treasury to address the splitting of cases in the perishable and non-perishable commodities; furthermore, the securing of the contract process is underway.

Consequence Management
The Department has investigated cases of irregular, fruitless and wasteful expenditure however not all cases were investigated. The Acting National Commissioner appointed investigators at regions to speed up the investigation process at the place of occurrence.

Irregular Expenditure
Measures have been put in place to address the non-compliance and prevent irregular expenditure on perishables and non-perishables commodities:
• Received an exemption from National Treasury on March 2022
• Developed and implemented the departmental control committee for all transactions from R1 million and above
• Strengthen procurement space by developing and implementing Standard Operating Procedure for all transactions within the Department.

Mr Marumule added that those internal controls were implemented in February and March, therefore, the fruit of those developments could not be fully realised within the current financial year. Moving forward, the DCS would realise those particular internal controls. It had analysed how much irregular expenditure had been prevented to date. R409 million had been prevented from reoccurring. 

Performance Information
The Department will engage implementing agents on a quarterly basis to obtain proper record on completed infrastructure projects in a timely manner. This will ensure that complete, relevant and accurate information is accessible and available to support performance reporting.

(See Presentation)

Discussion

Mr R Dyantyi (ANC) was the Acting Chairperson due to the person having connectivity issues.

Deputy Minister Holomisa responded to Dr Newhoudt-Druchen’s suggestion to deal with the problem of overcrowding caused by remand detainees who were not in a position to pay certain amounts of bail. She was suggesting that they be allowed out to serve their punishment under supervision by the DCS. The problem was that remand detainees were generally people who were yet to complete their trials. It would be impractical for that suggestion to be taken into consideration. The DCS would not know what kind of punishments such remand detainees were likely to get at the end of the trial.

Adv Swart said that the issue of overcrowding and remand detainees impacted the Department because it was a receiving department. When courts were not operating, or there was a problem with transcriptions and appeals (as indicated by the Legal Aid SA board), and cases were postponed, as happened during Covid-19, it increased the number of remand detainees. With JICS, the Committee referred to existing legislation. The present also indicated that when it came to low amounts of bail that had been set, it did not make sense. The Department then went back to court in terms of the provisions of section 49 and section 63(e) of the Criminal Procedure Act to reassess the bail. But Judicial officers did not want to go back on what they had said already. Perhaps it was an issue that the Committee needed to raise with the judiciary as well. It did not make sense to him to set a very low bail of R500 (For a person who posed a low danger to society) when it was costing the state R500 a day to hold that person when they could be found not guilty. The issue was to speed up the completion of the trials as quickly as possible. There was another provision where the health of the prisoner was of such a nature that the head of the prison could approach the court to release remand detainees. There were existing provisions that needed to be engaged on, while not impacting on separation of powers. Remand detainees had been an issue for as long as he could remember. Perhaps there was a way that the Committee could assist the Department, since it was the receiving department.  “Everyone was crying out for harsher punishment”, and the Committee understood that, coming from the criminal justice sector.

On infrastructure: Adv Swart observed that the Committee heard earlier that officials’ lives were endangered due to infrastructure that had not been properly maintained by the DPWI. It was the perennial problem that had been experienced with the DPWI everywhere. He suggested meeting with the Portfolio Committee on Public Works and Infrastructure to look at how to address the issue of the challenges that the DCS was experiencing due to the DPWI. The committee had seen underspending on infrastructure due to the DPWI. A lot of the issues were not necessarily the blame of the DCS. Perhaps the Committee could assist the Department in that regard.

Dr Newhoudt-Druchen asked about what the AG said to the Committee the previous day about payments not being done within 30 days. The DCS said that there were investigations on that matter, but the AG said that the DCS was supposed to respond on 30 September, and nothing had happened to date. She asked for an update on the investigation, and also about why the DCS did not report back to the AG by the stipulated date. She also wanted to know the reasons why payments were not settled within 30 days.

On parolees: When the families do not want to sign or confirm that their family member could be released, then what does DCS do? What were the alternatives when a family member would not sign off on that release?

On unnatural deaths: JICS gave the figure of 104, and the Department said that it was 54. Why were there discrepancies in the figures?

Dr Newhoudt-Druchen observed that there was a lack of patrolling and that the DCS said that it would do something about that. Why was there insufficient patrolling, and why did that happen?

There was an increase in catering costs in the two preceding financial years. The one year it was R156 000, and then the following year it was over R1 million. Why was there such a huge jump? The rehabilitation programme was R555 000, and then increased to R6 million. She asked if the department could explain those large variances. There was an increase in reintegration: There was R1.7 million for travel and subsistence in 2020/2021, and it increased to R4.6 million in 2021/2022. What were the reasons for the huge jump?

DCS response

Mr Thobakgale said that the DCS did not have sufficient personnel to do consistent patrolling. With the time lapse between the movement of the DCS’s security officials, especially with regards to accommodation, where the DCS was accommodating offenders who were in isolation cells, in most instances, it found that that was what gave a window for the risk of unnatural death. The department had done an analysis of the causes of unnatural deaths. It could provide the report to the Committee the following morning. That report started to address the issues raised by members saying that the Department needed to look at the causes and scientifically address those issues on a sustainable basis.

Mr Thobakgale added that when the report was presented, there was an indication that the Department's activities with regards to outreach had increased, which would have a direct impact on the cost of travel and subsistence, but the Acting CFO would deal with that quite extensively. The DCS appreciated the understanding from the Committee with regards to challenges it faced on overcrowding, and also the impact of remand detainees, on the numbers that it was dealing with as the DCS on a daily basis. On a monthly basis, the DCS submitted to the justice system the options that it had for referral to courts with regards to consideration of the length of detention, and the issue of review of bail applications in terms of section 63(a) and section 63(1). The Department had statistics with regards to the successes and where it had not been successful with regards to the review, which it would request from the justice system. Its success rate was always below or just above 20%, but it continued to make those submissions with regard to the movement that it would like to see improvement in the number of remand detainees. It welcomed the comment on the issue of infrastructure. The DCS continued to monitor the DPWI on a weekly basis. It did troubleshooting to make sure that its projects moved through the project pipeline. It was a very difficult task to deal with because the DCS ended up tracing some of its projects to some officials in the DPWI. It was “a bit tedious” to do that. But it continued to do monitoring on a weekly basis. The Minister and the Deputy Minister had a meeting with the Minister of Public Works and Infrastructure. There was a plan of action that had been agreed upon. The commitment was that both ministers and deputy ministers would continue to assist the DCS in ensuring that the action plan was implemented by the DCS as administrators.

Ms Anbigay Naicker, Deputy Commissioner: Strategy, DCS, wanted to highlight that throughout the annual report process, the Department and JICS worked very closely in terms of the data that was published in the annual report. Regarding unnatural deaths, DCS reported confirmed unnatural deaths. The DCS reported deaths where it had a post-mortem report or death certificate, and it could confirm that those deaths were actually unnatural. Those figures were also audited by the AG. In some cases, there could be an unnatural death that occurred in a financial year but was only confirmed in the following year. The DCS would record such deaths in the year when it was confirmed as unnatural. Ms Naicker also commented on the root causes for the unnatural deaths – the DCS also noted that the main cause of suicide was hanging. When the DCS indicated that there was a lack of patrolling in correctional facilities, it noted that a lot of those incidents happened after lockup when there was reduced capacity at correctional centres. When officials were required to take offenders to rehabilitation, or to court etc., there was additional capacity, whereas, after lockup, there was reduced capacity at the correctional facility. That had obviously contributed to the lack of patrolling as well.

Mr Marumule addressed the question about payments not being made within 30 days. The question had also been raised by the AG, and the Department's response was that it had just received the report, and it had to be looked at by the Department. Once the National Commissioner looked at the report, the Department would be able to supply it to AG. Regarding the reasons why those particular payments were not made within 30 days: The National Commissioner requested an investigation so that the Department could determine who was at fault and who did not actually perform what they were supposed to perform so that the Department would be able to process the payments on time.

On travel and subsistence: Mr Marumule said that travel and subsistence had increased based on the number of activities within the DCS outreach programmes. Increases related to catering were mainly related to, among other things, the nutritional services that the DCS provided to the training colleges at that particular point in time. That also had an impact on the increase in the year under review.

Mr Thobakgale spoke about the interventions that the DCS implemented if family members did not want to sign for a parolee. What it normally did was to start with immediate family members. The DCS would then assist with tracking the extended family members. The DCS worked with its parole board members to do that because most of the parolees came from the surrounding communities. The DCS also worked with community leaders, traditional leaders, and councillors. In instances where it had not succeeded at all to get family members to sign, it then allocated the parolees to halfway houses, because parolees would have an environment that provided guardianship. The DCS would then be able to monitor the parolees as they served their sentence under the parole system. The challenge was sometimes the fact that some of those offenders had committed crimes in their own family so their own family members were victims. Through the victim-offender dialogue process, family members might not have accepted that they could live in the same house as the offender that committed the crime.

Mr Dyantyi observed that the Department had achieved 100% of its indicators in relation to rehabilitation. Thus 11 out of 11 goals were done, with 98% expenditure, and the variance of about R26 million. He asked the National Commissioner and the Deputy Minister to comment on that because rehabilitation was a core mandate of that Department. Of course rehabilitation could only be successful if it was attended to with the other issues of social integration, etc. Having achieved 100% of the 11 indicators with 98% expenditure, and with a variance of R26 million, he was curious how the indicators had been achieved. Was the 100% achievement an indication that the Department was beginning to turn the corner? Or was it an achievement that the Department had obtained because it had put in 11 “Cinderella targets”?

Mr Thobakgale replied that the issue raised by Mr Dyantyi was at the heart of the exercise that the Department was currently engaged in, as the Minister did report earlier on. The Department had a project with the DPME in the Presidency to assess and measure the impact of its rehabilitation programmes. The report reflected on the target that the Department set for itself. When the Department set targets, it set them progressively which meant that if, for instance, in a particular financial year the target was at a particular number, once it achieved that target, it was a demonstration that its capacity to improve was confirmed. The Department increased the target as it went. The 100% performance was a reflection of the number of offenders that participated, the number of programmes that the Department rendered, and its effectiveness in rendering those programmes within budgets, and also with the limitations that it had of the personnel at its disposal for it to be able to render those programmes. With educational programmes, it was a function of the number of classrooms it had, and the number of teachers it had in particular correctional facilities. As the Department improved on adding the classrooms through its own in-house construction projects, it employed more teachers, and it then increased the number of educational programmes, and that then became the performance that was reflected in the annual report.

Deputy Minister Holomisa was very appreciative of the comments that were encouraging the Department to do more than it was currently doing, in order to ensure that it achieved the targets it set for itself. He felt that one of the reasons could be that there was a growing understanding on the part of stakeholders, such as social partners and communities, about what Correctional Services is about. Stakeholders were beginning to understand that it was not just a question of punishing people. It was not a question of retribution, but more a question of correcting the conduct of the people who had made mistakes so that they were given an opportunity to rehabilitate themselves. The Deputy Minister also felt that it was important to talk about the socio-economic conditions that resulted in South African people violating the law (even if it was not the core mandate of the Department or the Committee), getting arrested by police, then prosecuted, charged and found guilty, with a number of them finding their way to the Department's correctional centres. He felt that the socio-economic conditions should be addressed much more vigorously than they were at the moment because people simply believed that if a person had wronged the family or the community, that person then became the responsibility of the state. And yet there was so much more that could be done as families and as communities to reduce instances that were going to lead to people overcrowding the Department's correctional centres. Lastly, the Self-sufficiency and Sustainability Framework that the Department had embarked on, particularly under the leadership of the new National Commissioner, was leading to a situation where the Department found that its inmates were ready to make a contribution to ensure that even as they underwent rehabilitation programmes, they also contributed to the sustenance of the community itself (i.e. the prison community). In contributing to the sustenance of the prison community, people alleviated the burden on the state to use money in order to correct people's conduct. People were making their own contribution in ensuring that they were getting rehabilitated, and eventually getting reintegrated into society.

Closing

Mr Dyantyi thanked the Deputy Minister for leading the team after the Minister needed to leave. He also thanked the National Commissioner. The Committee hoped that the National Commissioner’s taking over the reins was going to ensure that the Department would take things to the next level, and not just be “business as usual”, and just tick the box. The Department was the last receiver of a number of the country's socio-economic challenges. He wanted to thank the departmental team, and he hoped that the Department would have taken to heart the issues raised by the Members. The Committee was going to continuously interact with the Department beyond that meeting on all of those thematic issues that it needed to make time for beyond the annual report. There remained a lot of challenges that the Committee was picking up. The Committee had a process that it was working on, and hopefully in a year's time, it would be able to say what it was doing around the issue of alternative sentencing. The Committee had planned to have a workshop, and Judge Cameron was “watching” it to deliver on that promise. The Acting Chairperson also thanked Judge Cameron for staying on in the meeting after he'd made a presentation. The Committee and JICS would continue interacting on all of those matters.

The meeting was adjourned.