General Overview of National Council for Correctional Services (NCCS) incl. backlog in processing lifers; with Ministry

Meeting report

Opening

The Chairperson opened the meeting and welcomed everyone present.

Mr J Engelbrecht (DA) brought to the Chairperson’s attention that some stakeholders are concerned that the Committee meetings are not live-streamed and/or recorded.

Mr S Mthonjeni, Committee Secretary, informed the Committee that Parliament is only limited to a few venues fitted with recording and streaming facilities. He said that the issue had been highlighted to management, and he requested that the Chairperson escalate the issue to management as well.

The Chairperson committed to raise the issue with the Chair of Chairs and would report on the outcome to the Committee.

The Chairperson said she is interested in hearing about the backlogs in the processing of lifers and plans to address those backlogs with National Council for Correctional Services (NCCS) in the meeting today.

Dr Pieter Groenewald, Minister of Correctional Services, greeted everyone and introduced Ms Leonah Ntshalintshali, Deputy Minister of Department of Correctional Services, Judge Letty Molopa-Sethosa, Judge of the High Court, Gauteng Division, Pretoria, and Chairperson of the NCCS, and Mr Makgothi Thobakgale, National Commissioner of Correctional Services (DCS) and other officials from his office before he handed over to Judge Molopa-Sethosa to conduct the presentation.

Judge Molopa-Sethosa introduced the delegation from NCCS and DCS to the Committee.

NCCS Briefing

Judge Molopa-Sethosa, Chairperson of the NCCS, presented the purpose, legal mandates, structure and functions of the NCCS. She also dealt with judgements relating to lifers, lifers as per the Correctional Services Act, Act 111 of 1998, the lifer minimum detention period, the consideration of lifer profiles and the challenges and successes of the NCCS. She said the purpose of the presentation is to appraise the Portfolio Committee on the structure and functions of the NCCS and to provide progress on the process concerning the consideration of offenders serving life sentences.

She said the NCCS’s legal mandates derive from the Correctional Services Act, 1998 (Act No. 111 of 1998). She referred to specific sections in the Act, such as section 76 which deals with Correctional Supervision and the Parole Review Board, section 78(1) and (3) which deals with the consideration of Lifers profiles, section 83 which deals with the structure of the NCCS, section 84 which deals with the functions and duties of the NCCS and section 81(2) which deals with the recommendations on possible advancement of approved placement dates.

She explained the structure of the NCCS. The NCCS is a statutory body appointed by the Minister of Correctional Services in terms of Section 83 (1) of Act No 111 of 1998. The Minister appointed the new NCCS effective from August 2023 for a five-year term, and further appointments were made in October 2023. The NCCS members were selected from a variety of disciplines, including legal, judicial, police, religious, social work, psychology, criminology, and academic fraternity, as well as experts on the correctional system. She said there is only one vacant position in the NCCS, as a member resigned on 6 September 2024.

She said the primary function of the NCCS is to advise, at the request of the Minister or on its own accord, and to advise on developing policy regarding the correctional system and the sentencing process. The NCCS also comment on and advises the Minister on draft legislation and major proposed policy developments regarding the correctional system, and examines any aspect of the correctional system and refers any appropriate matter to the Inspecting Judge.

She said the NCCS must consider profile reports of offenders serving life sentences and make recommendations in this regard to the Minister. The NCCS must make recommendations on cancellation or reinstatement of parole for Lifers, constitute the Correctional Supervision and Parole Review Board and fulfil any other function ascribed to it in terms of Act 111 of 1998.

She gave an overview of the judgements relating to Lifers. On 15 July 2011, the North Gauteng High Court made a ruling on offenders sentenced to life before 1 October 2004. The Court ruled that the date on which lifers may be considered for parole be advanced by credits earned in terms of section 22 A of the Correctional Services Act of 1959. Lifers became eligible for consideration for parole after serving 13 years four months instead of 20 years, then 12 years four months due to 2005 and 2012 remissions. She said over 4 300 offenders benefited from the judgement.

On 3 May 2019, the Constitutional Court handed down judgement which confirmed and varied the order of invalidity of sections 136 (1) and 73(6) (b) (iv) of Act 111 of 1998 in that these sections were declared inconsistent with section 9 (1), 9 (3) as well as section 35 (3) (n) of the Constitution. The Constitutional Court ordered that Parliament must, within 24 months from the date of the order, amend section 136 (1) of Act 111 of 1998 to apply parole regimes on the basis of the date of commission of an offence. The President assented to the Correctional Services Amendment Act 7 of 2021 on 1 June 2021. She said over 1 600 offenders benefited from this judgement.

A person who has been sentenced to life incarceration for offences committed on or after 1 October 2004 may not be placed on day parole or parole until he or she has served at least 25 years of the sentence. Any term of incarceration, excluding persons declared dangerous criminals in terms of section 286 A of the Criminal Procedure Act, may be placed on day parole or parole upon reaching the age of 65 years, provided that he or she has served at least 15 years of such sentence.

She said the NCCS sits monthly for a minimum of three days to, inter alia, consider Lifer profiles. She said that marathon meetings are arranged when there is an increase in Lifer profiles. She said the NCCS does not have any backlogs on consideration of Lifer profiles and they experience low levels of revocation of parole for Lifers. The NCCS considered fourteen applications for revocations in 2023/24 against 850 Lifer profiles considered in 2023/24. Lifer profiles are considered by the NCCS within three months of receipt by the NCCS Secretariat.

She said that the NCCS is experiencing a shortage of criminologists and psychologists, which is an area that needs intervention.

(See attached for full presentation)

Discussion

The Chairperson handed the floor to the Committee Members to make comments and ask questions.

Ms D James (Action SA) thanked the judge for an informative and enlightening presentation. She wanted to know whether the NCCS has a funded mandate. She asked about the preparation process for inmates who qualify for parole. She also wanted to know whether there was family engagement prior to the granting of parole. It was mentioned that inmates are granted parole based on credits and she wanted to know what those credits entail.

Ms K Kgobisa-Ngcaba (DA) wanted to know who comprised the secretariat, whether they have research support, and what is funded. Does the NCCS track what happened with profilers before it comes to you? Does the NCCS keep record of all the profilers considered which are rejected? What are normally the causes of rejection? Is it substantive or are there other reasons?

Mr S Mwali (MK) thanked the NCCS for the informative presentation. He wanted to know what the NCCS plans to do about the shortage of criminologists, as it is compromising the wellbeing of offenders. When can we see it being addressed and what is the plan? He commended the NCCS for the significant amount of women represented on the NCCS structure.

Mr J Engelbrecht (DA) thanked the judge for the very informative presentation and commended the work of NCCS. He said that despite all members of the NCCS having other day jobs, they invest much of their own time to do the work of the NCCS. He wanted to know whether the staff contingent of NCCS is sufficient and able to perform optimally the mandate bestowed on them. He asked how often the NCCS meets to get through the workload. How many submissions in terms of section 77 of the Act were considered during the time periods 2019/20 and 2021/22? He wanted to know how many of those submissions that were considered were granted parole.

According to answers provided in Parliament, 99 146 inmates were granted parole. Of those that were released, 16 100 were found to be in breach of their parole conditions. Of those 16 100 parolees, 6 417 committed serious offences, which equates to 6.5% of all parolees. Is 6.5 % an acceptable figure for the NCCS?

What is the nature and extent of the NCCS’s involvement in the parole system reform process, in terms of the functions and duties of the NCCS as per the Act? Has any consideration been given or assessment been made regarding the relevance and the effectiveness of the current rehabilitation review integration programme looking at the changing nature of prevalent crimes committed and the length of sentences handed down?

Mr W Plaatjies (ANC) wanted to know if the NCCS is the sole responsible appeal authority for all parole matters. What is the turnaround time for dealing with the stand-down matters? What is the complement of community involvement on the NCCS structure? Offenders come from the community and they are going back to the community upon their release, so it makes sense to involve the community in the NCCS structures.

Mr M Moela (ANC) thanked the NCCS for a thorough presentation. When Lifers are granted parole, where do they appeal to when the NCCS has revoked the parole? Does the NCCS also handle the revocation or is there another body that Lifers can appeal to? There is only one criminologist based in the Western Cape for all prisons around the country, which is not doing justice. What is the plan to address the shortage of criminologists?

Ms B Diale (EFF) welcomed the presentation and said it was very informative. How often does the NCCS meet? She said on slide 20 of the presentation, column 3 shows “Lifer profiles still at Ministry to be finalised” is 170 and the next column shows “Lifer profiles submitted at Ministry” is 60, whilst the last column, “Lifer profiles still at Ministry”, showed a zero – she did not understand the differentiation in the totals and asked for clarification.

She asked if NCCS had any vacancies for criminologists and whether those vacancies had been advertised.

Mr M Sokopo (ANC) wanted to know whether the criminologist consults with offenders in person or if submissions are just made to the criminologist on paper. He wanted to know whether the NCCS is considering using private criminologists seeing that there is such a huge shortage of criminologists. He knew that in the past, private clinical psychologists used to visit prisons which were paid by the Department of Correctional Services for services rendered.

He wanted to know if private psychologists are still used and, if not, what the plan is to ensure that the same challenge of shortage of professionals will not persist ten years from now as it is a challenge that has lingered for more than 20 years already.

The Chairperson said she was worried about the backlog of the Lifer profiles but is happy to learn that the backlog no longer exists. The report from the NCCS chair indicated that there is no longer a backlog. From the previous administration, it is known that correctional centres raised several issues about the backlogs of submissions made to the NCCS. She said from the backlog of 495, it was brought down to 170 and commended the NCCS for that. She expressed hope that the outstanding backlog matters will be dealt with by October 2024, as promised by the Minister.

She said during an oversight visit to Thohoyandou Correctional Centre, many issues were raised about profiles that were ready for submission but needed finalisation by either the administrative side of the Centre or the Parole Board, coupled with the tracing of victims and the finalisation of psychologists reports. Does the NCCS encounter those incidents? Are the profiles sitting with the NCCS or with the Centres?

Thohoyandou Correctional Centre indicated that they are still awaiting a response on 24 profiles that have been submitted to the NCCS. Zonderwater Correctional Centre indicated that they had submitted profiles in 2018 and are still awaiting a response. The Boksburg management area has submitted 167 (40 are Van Wyk and 20 are Phaahla) Lifer profiles to the NCCS, of which 39 profiles have responses still outstanding, and one profile is doing community service. If the turnaround time for dealing with profiles is three months, why are we still sitting with backlogs from 2018?

Mdantsane submitted two profiles - one was considered and one was returned. What is the common reason for returning a profile? Are they administrative issues or submission inefficiencies from the centres, or what are the reasons for returning profiles?

Does the NCCS have a relationship with JICS? If it does, how often do you meet with JICS?

Responses

Minister Groenewald explained the question of the differentiation of the numbers on slide 20. The first three columns refer to lifer profiles carried over from the previous administration and the second three columns refer to lifer profiles received in the current administration.

Judge Molopa-Sethosa addressed the question of backlogs referred to by the Minister. She said the backlogs referred to by the Minister are the profiles on the Minister’s table that need his signature. The NCCS has considered those profiles, made recommendations and signed those recommendations. The NCCS meets for three days every month, January to December, usually on a Wednesday to a Friday.

When there is a marathon meeting scheduled, the NCCS sits from Monday to Friday and when really pressing issues arise, the NCCS would sit in the evenings as well. The NCCS constitutes special meetings in the evenings to consider pressing issues such as profiles pursuant to short-dated court orders.

She said the understanding is that the criminologist has interviews with the offenders and then prepares a report which forms part of the documents received by NCCS for consideration.

Adv KA Mahumani, member of the NCCS, answered the question on community representation on the NCCS structures. He said that the community ia represented on the NCCS structures and that he is one of the community representatives on the NCCS. He referred the Committee to the presentation slide ten which indicates that a minimum of four public representatives must serve on the NCCS. He said it just happens that he is a community individual who pursued legal studies.

He said that section 299A of the Criminal Procedure Act 51 of 1977 provides for the right of victims of crime to participate in parole proceedings. He also referred the Committee to the Correctional Services Act which deals with Victim-Offender Mediation (VOM) and Victim-Offender Dialogue (VOD) which allows for families and victims to add their views during parole proceedings. He said the NCCS does not recommend parole if VOM and VOD were not conducted.

Dr H Hargovan, member of the NCCS, answered the question on the shortage of criminologists. She said that the issue of criminologists is quite complex and at the core of it is the fact that it is not a professional discipline. She said in recent times, the council has taken specific and gave particular attention to VOD and the engagements with the families of victims.

She said the NCCS requires reports from the correctional centres on whether families of victims have been traced, what attempts have been made to trace the families and to engage with the families and whether the families wanted to participate in the proceedings or not. On the question of why matters are sent back, she said the NCCS would sometimes request for more attempts to be made to trace the families of victims and for engagement with the families to take place.

Judge Molopa-Sethosa said that it is sometimes found that the offender denies committing the offence and for fear of re-victimisation, the NCCS does not recommend VOD to such families. She said it is now compulsory that victims be advised to make representations orally or verbally before the NCCS considers the profiles of offenders.

Ms L Rataemane, member of the NCCS, said that profiles are returned if all the information needed by the NCCS to make a decision is lacking. The NCCS does not interview offenders and relies only on the profiles brought to the council. Another reason for returning profiles is the absence of risk assessments. Relating to the shortage of psychologists, the Health Professions Act prohibits a psychologist who did therapy with an offender from doing a risk assessment on the same offender, as the psychologist’s objectivity may be compromised.

She said it was found that especially with the older profiles, offenders who committed serious offences were recommended for parole by the Correctional Supervision and Parole Board (CSPB). She said such offenders cannot be released on parole if the offender did not participate in any intervention programmes which deal with criminal thinking and other interventions.

She said that sometimes they get a profile of an offender who suffers from a mental disorder and such offenders are not supposed to be in a correctional facility. She said that the NCCS cannot deal with a profile where the offender suffers from a mental disorder as there has to be a diagnosis and a prognosis and it must be determined whether the person is a danger to himself and or others. Under these circumstances, those profiles are sent back.

Judge Nobahle Mangcu-Lockwood, Vise-Chairperson, NCCS, said that the question of determining and recommending parole is never the same for each offender as the council deals with profiles and profiles that differ and vary in terms of the crimes that were committed. She said the actual test is to see whether there has been an effectual intervention in the person’s life. She said that sometimes, it is a vocational skills issue where a person has never worked in his life and only knows a life of crime.

She said the NCCS acts as a review board which considers reviews of offenders under determined sentences and not life sentences. Lifer reviews go to the Minister, and if a lifer is unsatisfied with an outcome, they may take it to court.

Judge Molopa-Sethosa emphasised the comment by the vice-chairperson that if an offender is not happy with a decision, they may go to court, which happens very often. The NCCS does not have an appeal structure which deals with decisions made by the NCCS.

Judge T Norman, Vice-Chairperson, NCCS, said that JICS was established as an independent office, and the Inspecting Judge was appointed to head JICS. The function of JICS is to ensure human dignity and dignified living conditions for inmates. Because of the nature of the independence of JICS and the supervisory role of the Inspecting Judge, it is not good for NCCS and the JICS Judge to be friends as in buddy-buddy. The Inspecting Judge should be able to report on anything that affects inmates adversely, without his judgement being clouded by a friendship with NCCS. She said that similiarly, the Act empowers the NCCS to approach the Inspecting Judge should there be anything that the NCCS is not happy with concerning inmates. She said there is collaboration where needed between NCCS and JICS but without any formal relationship.

Mr Mbilini Twala said that the NCCS never had to cancel sittings due to lack of capacity. The council conducts physical meetings and, at times, has virtual meetings.

He also explained the progress made in considering Lifer profiles. As at 10 September 2024, 95 Lifer profiles were not yet considered by the NCCS, of which 47 are Van Wyk and 48 are Phaahla. Twenty four (18 Van Wyk and 6 Phaahla) Lifer profiles stood down.

Forty four (29 Van Wyk Lifer profiles, 14 Phaahla Lifer profiles and 1 Lifer profile in terms of Act 111 of 1998) were on route to the Ministry. One hundred and seventy Lifer profiles were submitted to the Ministry before 1 July 2024. Seventy Lifer profiles were en route to the Directorate for Pre-Release Resettlement. The turnaround times for matters that stood down vary, with some standing down for two months, others three months, and some longer.

Ms Daleen Van Biljon, member of the NCCS, said that not only are the families of the victims involved in the parole process but also the family of the offenders. The involvement of the offender’s family is important as it needs to be determined where the offender is going when released, what the family ties are with the offender and whether there was contact with the offender during the time of incarceration.

Social worker reports and psychology reports are very important. When it is known that offenders have psychological issues, it is recommended that the family must be educated on how to deal with and assist such an offender.

She said that NCCS does not have access to the programmes conducted with offenders, so NCCS is not in a position to say whether or not the programmes are relevant. She said that it was presented to the NCCS that some of the programmes are accredited but she cannot say which programmes or how many of the programmes are accredited.

Dr M Mkhathini, a member of the NCCS, said that the Department of Correctional Services provides quality assurance on the programmes that are presented by the service providers. The Department also develop programmes in conjunction with higher education institutions such as the sexual offences treatment programme. The DCS also appointed a service provider to evaluate the effectiveness of the programmes conducted in the centres, and the results confirmed that the programmes were doing well.

The lifespan of therapeutic reports is two years, and when the NCCS becomes aware of reports older than two years, profiles also get sent back to obtain an updated report. Profiles are also sent back when only a therapeutic report is received without a risk assessment report. Another reason why profiles will be sent back is when there are no sentencing remarks, which informs NCCS of what transpired in court during the trial. He also mentions the benefits available to offenders for highly meritorious service of highly meritorious conduct.

Mr Pieter Kilian, DCS, said that the report speaks about Lifers eligible for parole but the correct term should be Lifers eligible for consideration for parole because Lifers are not necessarily granted parole. The NCCS is concerned about 840 profiles that are over their dates and the NCCS is trying to establish the reasons for the delays. There are also 1 470 profiles with future profile dates which were already considered but there is a further profile date. Amnesty is also granted by the President from time to time, which may also influence the number of profiles when offenders are granted amnesty.

Commissioner Thobakgale said that DCS, just as other government departments, are subjected to the Treasury human resource planning budget tool. The HRPB tool requires that the number of posts be reduced because government is reducing expenditure on personnel, commonly referred to as a bloated public service. He said that DCS has written to Treasury and to the Department of Public Service and Administration (DPSA) to inform them that as a Department with 243 correctional facilities and 83 psychologists, it is impossible to reduce.

There was a misconception that NCCS was a structure in the Ministry. Since 2021, serious efforts have been made to enhance the working methodology between the Directorate which deals with incarcerations and corrections and the administrative support staff of the NCCS. This is to ensure that issues with regard to risk profiles and others, be illuminated and improvement in terms of the submission of files to the NCCS is already noticeable. The administrative support staff of the NCCS and the resettlement unit work together.

There was no directorate or specific position for criminologists previously. Approval for the inclusion of criminologists in the DCS structure was only obtained last year from the DPSA. DCS are in the process of establishing a directorate for criminologists.

Judge Mangcu-Lockwood answered the question related to restorative justice. She said that a colloquium was held in 2023 which brought forth a variety of recommendations, involving issues such as policy realignment.

Minister Groenewald explained the process and what it entails when a profile reaches his table for consideration of approval or disapproval of parole to a Lifer. He said the risk analysis report is very important to him in reaching a decision as it is not an easy decision to approve or not approve. The budget of Correctional Services was cut by R11.7 billion over the last five years. He said that he is in talks with the Minister of Finance to increase the budget for DCS and mentioned that more correctional facilities are needed.

The Chairperson thanked the Minister and NCCS for providing the responses. She said that it is clear that the backlog of lifer profiles is not with the NCCS as was pictured in the oversight visit but it is now known where it derives from and that the backlog is at the Minister’s office. She said she hopes the Minister will keep his commitment to eradicate the current backlog by 15 October 2024 as he promised the Committee.

Further discussion

Mr Engelbrecht clarified his earlier question about the percentage of parolees for the three financial periods.

Ms Kgobisa-Ngcaba said her earlier question regarding the staff complement was not answered. She asked who makes up the staff and wanted to know whether the NCCS has researchers.

Mr Twala said that 11 staff members consider the Lifer profiles.

Ms James said the shortage of social workers is negatively impacting the work of the NCCS which in turn negatively impacts the people, the NCCS and the Committee. Diagnosing offenders with mental illness after admission to prison was a great concern. It has been said in all the Committee meetings that DCS was carrying the patients of the Department of Health. It seems like these mentally ill patients are being manufactured and created within the DCS. She said the prisons must be rid of drugs as drug abuse in prisons is a great concern and the cause of most of the problems.

Ms Kgobisa-Ngcaba wanted to know whether the NCCS has the capacity to examine aspects of the correctional system and to refer any appropriate matter to the Inspecting Judge, taking into account their workload in considering Lifer profiles. She expressed concern about the absence of additional staff and researchers and whether the NCCS really has the capacity.

Mr Engelbrecht asked the NCCS to clarify the issue of victim participation. He wanted to know whether victim participation is dealt with in terms of what the law prescribed and in terms of the national directive issued by the national commissioner in 2006.

Mr Moela asked for statistics on how successful offenders are in challenging the NCCS’s decisions in the High Court.

Minister Groenewald clarified Mr Moela’s question on offender success in court. He said that the NCCS does not make decisions, they only make recommendations to the Minister. When offenders are unsatisfied with the Minister’s decision, they take the Minister to court, not the NCCS. The Minister said he does not have statistics of offender’s success in court on hand but can obtain them and make them available to the Committee.

Judge Mangcu-Lockwood said that the NCCS needs at least one researcher.

Judge Molopa-Sethosa confirmed that the NCCS does not have a researcher.

Dr Hargovan said that apart from internal policies on VOD, there are no legislative protocols and guidelines on VOD. She said that this is a gap that has been identified. She also said that victim participation is generally low for many reasons which have not been properly investigated. The values and principles of restorative justice suggest that participation should be completely voluntary.

The complex questions grappled with sometimes is whether to hold an offender back who refuses to participate or whether his participation should be insisted on. One also has to be cautious about secondary victimisation of victims by continuously approaching victims for participation in VOD. Who is actually facilitating these VODs? Is it people who are properly trained?

How do we deal with adult survivors of rape who was raped as children and approached to participate in VODs when they are adults? How do we deal with that and what are the specific types of resources allocated to deal with those cases? Research needs to be done on actual participation levels and why there is no participation in some instances.

Dr Mkhathini said that there is a mandate given to DCS that statistics on the involvement of victims on parole board sittings are consolidated every month and reported on. He said it is important for the NCCS to keep a paper trail on efforts embarked on to motivate victims to participate in processes.

Judge Molopa-Sethosa said she hoped she and the delegation had answered all the questions and thanked the Committee for the opportunity.

The Chairperson thanked Judge Molopa-Sethosa and the NCCS for the responses. She said that she would like to receive the outstanding reports especially the statistics of offenders that took the Minister to court. She thanked the Minister for addressing the backlog and thanked the NCCS team for their appearance before the Committee.

The Minister and NCCS excused.

Committee business

Committee Minutes

The Committee considered and adopted their minutes dated 13 August 2024, 20 August 2024, 27 August 2024, 3 September 2024 and 10 September 2024. No corrections were made to the minutes.

Oversight report of the Portfolio Committee on Correctional Services to Goodwood Correctional Centre

The report was considered and adopted. See report here https://pmg.org.za/tabled-committee-report/5932/

The Chairperson presented the draft programme for the next term which will commence on 8 October 2024 inlcuding oversight visits.  

Mr Mthonjeni explained the logistics, travel, and accommodation arrangements of the oversight visit to the Members. The Committee will depart on 7 October 2024 and will return on 11 October 2024.

The programme was adopted.

The meeting was adjourned.