Correctional Services Amendment Bill: DSC briefing (with Deputy Minister); Land Court Bill: Committee Report

Meeting report

The Chairperson welcomed Members and acknowledged the apology from Mr Swart, S (ACDP).

The report on the Land Court Bill was taken as circulated. Ms N Maseko-Jele (ANC) moved to adopt the report, and Ms W Newhoudt-Druchen (ANC) seconded. However, Adv G Breytenbach (DA) said the Democratic Alliance reserved their position, and Ms Y Yako (EFF) said the Economic Freedom Fighters also reserved their position.

The Chairperson said the report was agreed to and would be sent to the National Assembly for debate and approval. If the National Assembly endorsed the Section 75 Bill, it would then go to the President for assent. During the Judiciary Day, concerns were raised about the slow pace of approving the Bill. It would now finally go to the National Assembly with the amendments done by the National Council of Provinces, which Members had agreed with.

The Chairperson welcomed the Deputy Minister of Correctional Services, Nkosi Patekile Holomisa.

Remarks by Deputy Minister

Deputy Minister Holomisa said the Bill had been to the Committee for some time, and Members were aware of what it was about. The Bill aimed to implement the decision of the Western Cape High Court, which was endorsed by the Constitutional Court, to give effect to the meaningful independence of the Judicial Inspectorate for Correctional Services (JICS). This was so that it did not have to account directly to the very organisation or Department that it was intended to monitor if it complied with the requisite provisions of the constitution. This was effected by the crating of the amendment Bill. He noted that there would be a Bill in the future that will ensure the JICS becomes an independent entity to service the purpose more meaningfully. However, to give effect to the directives of the Constitutional Court, the amendments had been effected.  

Presentation of the Correctional Services Amendment Bill, 2023: Sonke Judgement

Mr Makgothi Samuel Thobakgale, National Commissioner of Correctional Services (DCS), said the presentation of the draft Bill was to show progress made so far and to request the support of the Committee to get the amendments through the required processes to the point of finality.

Mr Jacques Van Wyk, Legal Services, DCS, presented the sections intended to be amended in the Bill. Firstly, the Bill intended to insert new definitions in Section 1 of the Act. He noted that the principal Act made many references to “Head of the Remand Detention Facility” but there was no meaning of this defined in the Act itself. The meaning of “sexual violations” and “torture” would also be clarified in this amendment.

Secondly, the Bill intended to amend Sections 30 and 31 concerning segregation and restraints. The aim was to inset provisions that inmates must be informed of their right to appeal against being subjected to segregation and restraints, and this must be reported to the Inspecting Judge. The head of the Correctional Centre of Remand Facility must provide all relevant information relating to the appeal process on segregation and restraints to the Inspecting Judge within 24 hours of being requested to do so. The Bill included these provisions to strengthen the cooperation between DCS and JICS, enhance the independence of JICS, ensure greater transparency, strengthen the human rights of inmates and comply with ratified international instruments and law.

Thirdly, the Bill aimed to delete the provision in subsection 1(b) in Section 88A. This subsection was found unconstitutional, and the CEO could be appointed as the Accounting Officer of JICS as soon as JICS was established as a separate Government Component. This meant amending the appointment of the CEO from the National Commissioner to the Minister. Subsection 3 was also intended to add “career incidents”. Furthermore, matters relating to the misconduct and incapacity of the CEO were to be referred to the Inspecting Judge and the Minister, not the National Commissioner.

The Bill would amend Section 91 of the Act, stipulating that the Department would no longer be responsible for the expenses of JICS. This provision would stipulate that JICS was to be funded by money appropriated by Parliament. This amendment also proposed that the CEO of JICS would be appointed as the Accounting Officer of JICS.

Both the Ministers of Department of Public Service and Administration (DPSA) and Finance supported these proposed provisions in the amendment Bill. The establishment of JICS as a separate entity of the Government would be tabled together with the new JICS Bill as soon as the budgetary issues concerning JICS were resolved by Treasury.

Amendments proposed for Section 95 (d) were to insert a new section to outline the content of the mandatory reporting obligations of the Department to the Inspecting Judge. This would be in compliance with ratified international instruments and law, the Mandela-rules and would bolster the public’s perception of the cooperation between DCS and JICS, and the latter’s independence.

Cabinet approved that the Bill would be introduced to Parliament in May 2023. The Office of the Chief State Law Advisor (OSCLA) issued a final certificate on 19 May 2023 on the Constitutionality of the Bill and found it to be properly drafted in the form and style which conforms to legislative practice.

The Department recommended that the Committee note the progress in implementing the Constitutional Court order in the matter of the Sonke Judgement and support the introduction of the Correctional Services Amendment Bill 2023 into Parliament in accordance with Rule 159 of the Joint Rules of Parliament for amendment of the Correctional Services Act, 1998.

The Deputy Minister seconded the request for the Committee’s support in this respect.

Remarks by CEO of JICS

Mr Vick Misser, Chief Executive Officer, JICS, said JICS supported introducing the Correctional Services Amendment Bill as it had been extensively canvassed and discussed with JICS and the National Commissioner’s office. He expressed hope that the budgetary issues JICS was currently facing would be resolved soon with the assistance of the Treasury. This would allow for JICS to introduce the “two pending-cab memos”, namely the JICS Draft Bill and constituting JICS as a national government component.

Discussion

Ms W Newoudt-Druchen (ANC) asked for clarity on the compliance from the Cabinet in terms of the Bill. Did the Bill refer to the Correctional Services Amendment Bill or the JICS Bill?

Ms N Maseko-Jele (ANC) welcomed the presentation and the changes the Department had presented. It was important for the Department to consider not only the rights of the inmates and those who protected and were responsible for those rights, but also the limitations of these rights. Many people were of the view that going to prison was like going to a hotel. These comments could give the perception that government failed to take care of the victims in this regard, but only cared about the perpetrators. While implementing these rights, the victims, and the independence of JICS needed to be considered.

Ms Y Yako (EFF) hoped that with the Bill being passed, prisoners who found themselves in the prison system would be protected regardless of how they ended up there. There were often vulnerable prisoners in the system who, due to their environment in prison, ended up participating in activities that they otherwise would not have done. She hoped the Bill would protect the rights of those vulnerable inmates as much as it protected the victims. She noticed in the Correctional Services system, inmates were usually lumped together as criminals even though they had committed varying degrees of crimes. This could encourage more criminality in this space.

Mr W Horn (DA) asked whether the Department had considered if the move to change the appointment authority of the CEO to the Minister addressed the issue at all. As it were, the National Commissioner was the Accounting Authority of the Department. In terms of real independence, this could only be achieved if the appointment was moved outside the domain of the executor. He was unsure to what extent other models had been considered, for instance, the consideration that the Inspecting Judge had a role to play in this. He was unsure if this would address the issue of Constitutionality that the Department was trying to tackle.

Responses

Commissioner Thobakgale said introducing this Bill would strengthen the relations between JICS and DCS. The Department was greatly concerned about the treatment of offenders. They aimed to restructure their classification process so inmates were structured in their units or correctional facilities that would not worsen their conditions but create conditions conducive to rehabilitation.

Mr Van Wyk said in 2019, JICS, in conjunction with DCS, developed a business case and commenced drafting the JICS Bill. A lot of interaction occurred between JICS and DCS to such an extent that a twentieth version of the JICS Bill was reached. The decision was taken for the Correctional Services Amendment Bill to be utilised in compliance with the Constitutional Court judgement, despite the varying circumstances that led to a substantial delay. However, this did not mean that the JICS Bill had been shelved. Once the JICS Bill ran its course, it would repeal all relevant sections in the Act and as soon as the budgetary issues were resolved with Treasury, the adoption process would commence. The JICS Bill was initially put together to supplement any issues found in JICS’ independence.

This also linked with Mr Horn’s question about the appointment authority. JICS supported the view of OSCLA that the change would not hinder JICS’ independence. For practical purposes, by making this change, the only way this goal could be reached was by doing so. Section 88A(1)(b) and Section 91 of the Act were found to be unconstitutional and made the CEO accountable to the National Commissioner for money received. This was now being deleted and replaced by the provisions in Section 91. This was also why it was practical to entrust the Minister with the duty of appointing the CEO.

The Chairperson asked how, besides the presentation of the Bill, the position of JICS had changed since they went to the Court to apply for an extension in time.

Mr Van Wyk said the main issue that prevented JICS from presenting the Bill timeously before requesting an extension, was that Treasury needed to endorse that JICS be established as a separate government component. At the time, it was not about budgetary constraints, as it was now, but that the support and recommendation would be required from the Minister of Finance and the Minister of DPSA. Whilst waiting for this, JICS could not include in this bulk for the CEO to be the Accounting Officer because of the provisions in Section 36 of the Public Finance Act. This was the reason why the Bill could not be taken any further. Unfortunately, JICS could not submit the current Bill the previous year without the support and endorsement of the Minister of Finance.

The Chairperson asked if the amendment, without the JICS Bill, made any operational difference.

Mr Van Wyk responded that the intention to amend certain provisions of the Act would ensure compliance with the Constitutional Court’s judgement, seeing as there were time constraints to this. The JICS Bill’s purpose was to culminate what was envisaged several years ago regarding JICS’ independence.

The Chairperson asked the Minister to confirm whether the JICS Bill would not be dealt with this year.

Deputy Minister Holomisa confirmed that it would not be dealt with, considering the time it took. However, he said this gave Parliament enough time to handle the matter without the Constitutional Court’s time constraints. This left enough time for all the consultations required from the various departments.

Mr Misser said that the appointment of the CEO had been well-canvassed in terms of Section 88A. If JICS was not yet constituted as a national government component, which had already been agreed and recommended, it would be virtually impossible to have the CEO as the Accounting Officer, since there cannot be two accounting officers. This was the biggest hurdle that needed to be passed.

The Chairperson asked the CEO what needed to be done in terms of the issue he had raised, between now and when the Bill would be released for public comments.

Mr Misser pointed out that this Bill had been extensively debated. JICS supported the Correctional Services Amendment Bill because it was in line with the Sonke judgment. He reiterated that the only hurdle was that JICS needed to be constituted as an independent government component. Once this was dealt with, the appointment of the CEO as the accounting officer could be in place.

The Chairperson suggested that the Deputy Minister take this matter up with the Minister of Correctional Services as this was an administrative and executive issue.

Deputy Minister’s Closing Remarks

Deputy Minister Holomisa noted the request from the Chairperson. He said that the Committee needed to be aware of all the engagements that had taken place, including the Parliamentary legal advice. The JICS Bill would take care of any other issues related to the independence.

He referred to the policy issues that were raised. It was a constitutional requirement that all inmates be treated as human beings. The Mandela-rules required that inmates come out better than they were when they entered the system. This meant they received the necessary skills and education for them to become better and decent citizens. As for the victims, this was not the Department’s responsibility to ensure that the victims were kept secure. The Justice Administration System was costly when it came to compensation for victims of crimes. The state was concerned with the criminal aspect of what was done, and not the compensation of the victims. The interests of the victim were looked after by the prosecution, not the Department.

For civil actions, the victims may decide to hire lawyers or seek support from Legal Aid compensation. This is via the civil court. However, it was necessary to have discussions with other departments like Social Development to consider how such issues could be addressed.

Chairperson’s Closing Remarks

The Chairperson proposed that to save costs for the invitation and adverts of the Human Rights Commission, the adverts and invitations be released as one to Parliament. The Bill would go out for public comments and then it would be processed. He thanked the Department and JICS for their presentation, and the Members for attending the meeting.

The meeting was adjourned.