Budget Vote 19; Correctional Services Amendment Bill

Meeting report

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE

Current State of Expenditure
Final MTEF Budget Allocations
Budget Interpretations
Correctional Services Amendment Bill, [B8-2001]
2001-2002 Budget, Vote 19

SUMMARY
The Committee were given a clause-by-clause breakdown of the way in which the Bill amends the Act.
It became clear from the budgetary presentation that the issues of overcrowding and the resulting increase in operating costs were contributory factors leading to the major shortfall in the budget anticipated for the next three years.

MINUTES
Correctional Services Amendment Bill: briefing
Mr Paxton, the legal advisor, said that the problems with the Correctional Services Act of 1998 gave rise to the amending legislation. These amendments arose from problems relating to implementation of the correctional supervision and parole boards as well as arising from comments by the State Law advisors.

Correctional Supervision and Parole Boards (Clauses 27 and 28)
In terms of the amendments, the following was proposed:
-The removal of members of the Departments of Justice and SAPS and one member of the
Department of Correctional Services (DCS).
-The Boards may co-opt officials of SAPS and Justice who will have voting rights.
Commissioners of DCS and SAPS, the DG of Justice and the NDPP (National Director of Public Prosecutions) will determine a schedule of offences and terms of sentences. The Boards must advise Justice and the SAPS two months in advance of a Board’s sitting to obtain recommendations on the granting of parole or correctional supervision in a specific case.

Clause 1, the terms ‘amenities’, ‘authorized official’ and ‘disability’ were defined.
Clause 2: the Commissioner may also remunerate and discipline officials.
Clause 4: The Minister may not only establish prisons but also classify them.
Clause 5: The rationale for compulsory medical examination of a prisoner on admission is the protection of the health of the general prison population.
Clause 6: A prisoner can now occupy a single cell under normal circumstances.
Clause 7: The upper limit between meal intervals is 6.5 hours.
Clause 9: Inserted to be disability and gender sensitive.
Clause 12: An ‘authorized official’ will assist the Head of Prison in disciplinary hearings.
Clause 16: Mechanical restraint devices may only be used outside cells.
Clause 17: Force may be used for self-defence or in the defence of someone else, if a prisoner tries to escape or for the protection of property.
Clause 18: Non-lethal incapacitating devices such as. teargas may not fired into a crowd and it should be used with minimal and proportional force.
Clause 19: Firearms may be used in self defence on condition that: (i) a verbal warning has been given, (ii) a warning shot has been fired and (iii) the line of fire should be directed in such a manner that the probable result will not be fatal.
Clause 20: A child prisoner may only do work for the purposes of training aimed at obtaining skills for his/her development. The work must not be inappropriate for the child’s age or may not place the child’s educational, physical, mental, moral or social well being at risk.
Clause 25: Where a prisoner has violated parole, the Commissioner may instruct that community corrections be resumed without referring the prisoner back to the parole board.
Clause 29: The functions of the Judicial Inspectorate now include facilitating inspections of prisons so as to report any corrupt and dishonest practices in prisons.
Clause 30: The Inspecting Judge has the same powers and duties as the Commissioner for the purposes of administrative management and control of employees under his/her authority.
Clause 35: The Commissioner may sell any property of escaped/deceased prisoners which have been seized in terms of the Act which is not lawfully claimed within six months of the escape/death. The proceeds settle claims against the prisoner and the balance is paid into the National Revenue Fund. If, after the six months the person proves that he is entitled to the proceeds, the balance must be paid to him.
Clause 39: This clause provides for the extension of S134 of the Act.
Clause 40: The new Act will not apply to a prisoner serving a sentence in terms of the previous Act. The new Act is therefore not retrospective.

Discussion
Ms S Seaton(IFP) opposed the idea that the duty to investigate corruption in the Department lay with the Commissioner. If there was potential corruption in the Department, it should be investigated by persons other than the Commissioner and his staff. She believed that the Judicial Inspectorate should perform this duty.

Mr Smit (NNP) agreed and said that some aspects of the investigation can be referred to the Commissioner.

The Commissioner, Mr Mbatha agreed, saying that while this was a valid point the Public Finance Management Act (PFMA) requires the Accounting Officer of a Department to report to the executing authority on incidents taking place in the Department. As the Commissioner is the Accounting Officer of the Department of Correctional Services, he is held criminally liable if he fails to comply. Also, it is the duty of the Department of Public Service and Administration to investigate corrupt practices by government officials such as the Accounting Officer.

Mr Smit referred to the statement in the memorandum that the Bill has no financial implications for the state. He asked why this was included.

The Chief Financial Officer, Mr Tshivase stated that R29.8 million had been made available for the implementation of the principal Act. This has nothing to do with the Amendment Bill. The Bill in fact results in a saving, as less money would be spent if it were implemented.

Mr Smit asked if the HIV/AIDS issue was included in the application of Clause 6.

Mr J Durand (NNP) asked whether prisoners were examined for HIV/AIDS in the interests of the population.

Mr Paxton said that the medical examination, which would now take place on admission, would be for the health of the prison population in order to prevent the spread of contagious communicable diseases. This however does not include AIDS. The DCS follows the policies of the Department of Health on this issue.

Mr Durand referred to the situation where a prisoner who is guilty of a serious violent crime tries to escape while at court. He asked whether a warning shot is still required despite the fact that this person might pose a serious threat to the public.

Mr Paxton responded that this is the same difficulty faced by police because of the requirements of S49 of the Criminal Procedure Act.

Mr Durand asked whether the same officials who were involved in proving a prisoner’s guilt were allowed to sit on the Parole Board when such prisoner applied for parole.

Mr Paxton said that the persons who sat on the Parole Board were nominated by the Commissioner of the SAPS and the DG of the Department of Justice. These persons are not necessarily linked to the original investigation.

Mr S Swart(ACDP) asked whether Clause 20 is in line with the Child Justice Act.

Mr Paxton said that the Act had been taken into account and emphasised that the Bill applied to sentenced children only and not to those who were awaiting trial.

A member asked why the staff of the Inspecting Judge should be made up of members of the DCS and suggested that it would be better to recruit ‘civilians’.

Mr Paxton replied that the Department gives the budget but the Judicial Inspectorate makes the appointments without interference by the Department.

Mr D Bloem(ANC) asked why the Inspecting Judge was given the same powers as the Commissioner in certain circumstances as having two bosses would inevitably result in tension.

Mr Paxton said that the powers of the Commissioner and the Inspecting Judge were the same for the purpose of administration only. To prevent conflict, the Inspecting judge is given independence with regard to his own employees. The Commissioner added that it was important to note that the Judicial Inspectorate functions totally outside of the DCS. The law wishes to maintain this independence.

Department of Correctional Services Budget: briefing
The mandate underlying the budget
The Commissioner stated that the DCS draws its mandate from its enabling legislation, the Correctional Services Act (Act 111 of 1998). He then proceeded to read out the aims of the DCS in terms of this Act.

This Act is in accordance with the Constitution of RSA (1996) requirements. The Commissioner read out S35 (2) of the Constitution dealing with the rights of arrested, detained and accused persons.

He then briefly mentioned the core objectives and eleven priorities of the DCS.

Policy developments - Influence on MTEF Allocations
-Promoting of Public Private Partnerships
-Enhancement of Community Corrections: Implementation of Electronic Monitoring:
-Training and retraining of personnel: Impact of the SETA skills levy.
-Establishment of New Directorates
-Focus on reintegration into the community as a key area for rehabilitation
-Implementation- concept of unit management
-Implementation- National Council
-Efforts- speedup movement of offenders through Justice System
-Re-establish an effective model for rehabilitation of offenders
-Full establishment of Office of Independent Judge

Total Budget Allocation: Vote 6
The amount voted for in 2001 was R5.2m. If the adjustment estimate is added, the final budget allocation amounts to R5.3m.

The adjustment estimate is made up of roll-over funds from 1999/2000, incremental income, suspension of funds (lease agreements), suspension of funds (agricultural training for prisoners), provision for 13^th cheque (January to March) and inflation related adjustment (Fuel, Higher salaries). Incremental income includes income generated by prisoners. The DCS was given R2.1m of this income.

Current state of Expenditure
Ideally 95.8% of the Budget Allocation should have been spent as on 13 March 2001. DCS has spent
95.03 % of the R5.3m. Mr Tshivase said that this showed that DCS was doing well in this regard.

Departmental Income
Treasury has promised the Department R70.6m. R64.5m has already been received.

Current state of expenditure per program, per standard item and per province
A total of 95.03% of the budget allocated to the programmes, to standard items and the provinces has been spent. However if one looks at the current state of expenditure per province but excluding personnel expenditure, the figure shows that 94.4% of the total budget allocated for this purpose has been spent.

Current state of expenditure: purchase of Departmental equipment: per province
The update of this table is used monthly to determine which provinces are experiencing problems with regard to equipment because of, for example, the delay of a tender. In addition, it is also easier to determine which provinces are either underspending or overspending.

Medium Term Expenditure Framework(MTEF)
The total MTEF allocation for the period 2000/2001 was R5.8billion, for 2001/2002 was R6.01 billion and for 2002/2003 was R6.5 billion. There is an 8.5% increase in MTEF allocation from the period 2000/2001 to 2003/2004.
The Key Focus Area which impacts on need
-Growth in offenders with increasing operating costs
-Overpopulation in prisons
-Backlog on personnel establishment- high ratios
-Budgetary shortfall: Departmental equipment and other day to day running costs

Prison Accommodation: Need within MTEF
The total number of beds (i.e. available accommodation): for 2000/2001 is 100 384, for 2001/2002 is 105 648, for 2002/2003 is 112 029 and for 2003/2004 is 126 029.
Despite this the total overcrowding is169% for 2000/2001, 176% for 2001/2002, 185% for
2002/2003 and 190% for 2003/2004.

DCS Budgetary Need within MTEF
The amounts needed for programmes and per standard item (excluding capital works):
For 2001/2002: 6.5 billion respectively
For 2002/2003: 7.3 billion respectively
For 2003/2004: 8 billion respectively
Shortfall: Need vs. MTEF Allocation (i.e. shortfalls after allocations have been made): There is a
shortfall of 9.2 billion for 2001/2002,of 14.4 billion for 2002/2003 and of 18.6 billion for 2003/2004.

Mr Tshivase said that with regard to the breakdown of expenditure figures, the Portfolio Committee has in the past always wanted to know why, of the amount spent by the DCS, so little was set aside for the development of offenders. He said that the bulk of their spending was on personnel. It is important to note that many of the personnel are involved in the rehabilitation of the prisoners as all personnel are not involved in custodial duties.

Discussion
Mr Smit asked what the percentage of overpopulation is at present.

Mr Tshivase said that the current figure is 69%. This figure changes daily as people are admitted and released.

Mr Bloem asked what the cost was of building the prisons in Kokstad and Louis Trichard respectively.

Mr Tshivase said that Kokstad cost R350m while Louis Trichard cost R461m.

Mr Bloem said that the Committee had been given different figures previously. They had been told that Kokstad cost R631m and that Louis Trichard had cost R303m.

Mr Tshivase said that he did not believe this to be the case, but added that the Chair could check this figures.

Mr Bloem asked why electronic monitoring had not been implemented yet.

The Commissioner admitted that he had promised the Committee last year that the implementation date was March this year. However, in January this year it became evident that there were problems regarding the specifications for the tender as the original specifications had made the whole project a Public/Private Partnership(PPP) venture. If this were a PPP venture then an entirely new procedure would have to be followed. The Department realised that it was best to have new specifications drawn up so as to prevent the project from simply being handed over to a US company. The Commissioner said that electronic monitoring is still the way to go, but that the DCS was still in the process of doing their homework.

Mr Bloem said that money had been spent on the original specifications and had been lost.

The DG said that R1.9m had been spent in the start-up process.

Ms Seaton asked why the issue of the DCS as a self-funding institution has not been discussed. She asked why income generated by the DCS was not appropriated back into the Department and was becoming part of the state funds instead.

The DG said the Department had tried to convince the State Treasury of the advisability of doing this. They had been unsuccessful. The Treasury has argued that it was unnecessary since the Treasury had never refused the Department money when funds were requested. Another panel member said that self-sufficiency should be looked at in two ways: Firstly, there was the production of their own food and goods for use in the Department. These items, such as. eggs, milk and uniforms are not reflected on the Budget. Secondly, there is direct revenue that is obtained by selling goods to the State. He suggested that the Department should be given access to the open market in which to sell their produce. In addition, he suggested that the Department not tender out maintenance when the DCS has both the staff and the means to do the work themselves.

Mr Bloem asked what the cost is to maintain a prisoner per day.

The DG said that it costs R94.16 per day.

Mr Bloem said that this needs to be broken down further since it does not say if water and electricity is included in the amount.

Mr Bloem asked how many staff members there were at DCS headquarters.

The DG said that there were 700 staff members.

Mr Bloem suggested that since there was a personnel backlog, the Department should recruit ‘civilians’ to do administrative work.

The meeting was adjourned.

Appendix:
CORRECTIONAL SERVICES AMENDMENT BILL, B8- 2001

BACKGROUND
1. The Correctional Services Act, 1998 (Act No. 111 of 1998) was assented to by the President on 19 November 1998.
2. It also called for a total new structure of subordinate legislation. (Regulations and Orders).
3. Implementation of the Correctional Supervision and Parole Boards presented difficulties.
4. Regulations were drafted in 1999. The State Law Advisers proposed amendments on matters of principle to be contained in the Act.
5. The source of the amendments are therefore:
(a) The amendment of the provisions relating to the Correctional Supervision and Parole
Boards.
(b) Comments by the State Law Advisers.

II PROPOSED AMENDMENTS
A. Correctional Supervision and Parole Boards (Clauses 27+28)
i) Members of the Depai4ments of Justice and SAPS be removed as well as 1 member of DCS.
ii) Boards may however co-opt officials of SAPS and Justice who will have voting rights.
iii) The Commissioners of DCS and SAPS, the DG of Justice and the NDPP will determine a schedule of offences and terms of sentences on which the Boards must advise Justice and the SAPS two months in advance of a Board sitting with the purpose to obtain recommendations on the granting of Parole or Correctional Supervision in a specific case.

B. Amendments relating specifically to comments by the State Law Advisers
i) Clause 1:
"Amenities" described in full instead of in the regulations.
"Authorised Official" to assist Head of Prison in disciplinary hearings.
"Disability" to be in line with Promotion of Equality and the Prevention of Unfair Discrimination Act.
ii) Clause 2: Deals with the powers of the Commissioner in terms of human resource matters and to stipulate that he/she may also remunerate and discipline officials.
iii) Clause 4: Authorises the Minister not only to establish prisons but also to classify them.
iv) Clause 5: Adds the rationale for the compulsory medical examination of a prisoner on admission.
v) Clause 6: To provide for accommodation in single cells which is not isolation or segregation and the separate detention of
prisoners if there is a possibility that their association may defeat the ends of ustice.
vi) Clause 7: Provides for an upper limit
between meal intervals of 6,5 hours.
vii) Clause 9: Inserted to be disability and gender sensitive so as not to discriminate.
viii) Clause 12: Inserts the concept of "authorised official" to assist the Head of Prison in disciplinary hearings and also to provide for legal representation and procedures at disciplinary hearings.
ix) Clause 16: Prescribing the circumstances of using mechanical restraints devices.
x) Clause 17: Prescribes conditions under which force may be used.
xi) Clause 18: Prescribes conditions under which non-lethal incapacitating devices may be used.
xii) Clause 19: Prescribes conditions under which
fire-arms may be used.
xi ii) Clause 20: Inserts provisions relating to labour by sentenced children.
xiv) Clause 25: Authorises the Commissioner to return a parolee/probationer to the community if there is a valid reason for not complying with his/her conditions of community corrections. Without reference to the parole board.
xv) Clause 29: Removes the duty to look into corrupt and dishonest practices from the Judicial Inspectorate.
xvi) Clause 30: Empowers the Inspecting Judge to regulate administrative affairs of his/her staff.
xvii) Clause 32: Add the duty to investigate corrupt and dishonest practices to the Internal Service Evaluation component of the Department.
xviii) Clause 35: Deals with the property of a deceased or escaped prisoner.
ixx) Clause 39: This section is extended to cover matters on which the Minister may make regulations and for the Commissioner to
make orders.
xx) Clause 40: Deals with transitional provisions.

C. Grammatical/Drafting Technical Amendments
Clauses 1; 3; 8; 1Q11; 13; 14; 15; 21; 23; 24;26; 33; 34; 36 and 38 deal with above-mentioned issues.