Overcrowding in Prisons; Protected Disclosures Bill; Firearms Control Bill: briefing

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Meeting report

OVERCROWDING IN PRISONS; PROTECTED DISCLOSURES BILL; FIREARMS CONTROL BILL

SAFETY & CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
7 June 2000
OVERCROWDING IN PRISONS; PROTECTED DISCLOSURES BILL; FIREARMS CONTROL BILL

Documents handed out:
Department of Correctional Services Presentation
Brief Summary: Protected Disclosures Bill (attached to end of minutes)
Legal Opinion on Protected Disclosures Bill
Firearms Control Bill
Protected Disclosures Bill

Chairperson: Mr Mahlangu, assisted by Ms Lubidla and Mr Lever

Correctional Services delegation: Rev L W Mbete (Commissioner : Correctional Services), Ms O Ramsingh, Mr S S Sokupa, Mr P Gillingham, Mr T Esmeraldo, Mr T Rubushe Mataka.

SUMMARY
The Department of Correctional Services answered questions relating to excessive sick leave in the department, overcrowding, corruption and conspiracy within the department and the issue of awaiting trial prisoners. The discussions between Justice, Welfare and Correctional Services were resulting in practical solutions to the problem, with an undertaking by the Department to keep the committee up to date on any results.

MINUTES
:
Department of Correctional Services
Mr Mbete drew attention to their document which was compiled in answer to questions forwarded to the department by the committee. Further questions were invited.

Questions
Mr Matthee (NNP, KwaZulu-Natal) raised the following issues:
- It seems as if we are dealing with a crisis with regard to overpopulation, and whenever we hear about the issue, we are told that talks are being undertaken with Justice, of the plans to use correctional supervision and electronic monitoring to alleviate the problem. But we do not get specific goals with time frames and a budget. We need drastic and immediate action - a detailed plan of action with an indication of where money for this is coming in this budget year.
- We keep saying that Magistrates and Judges should be taken to visit the prisons. Why has this not happened yet? In a crisis situation we need detailed plans.

Mr Lever (DP, North-West) raised the following questions:
- Do the awaiting trial / unsentenced prisoner figures include minors?
- Regarding the figures on escapees - it would be more useful to have the statistics on a continuum, as committee members would be better able to make a comparison. Can this information be made available?
- Can visits be arranged to prisons for committee members?

Mr Ackermann (NNP, Western Cape) raised the following issues:
- Regarding the statistics on sick leave, the department has answered the question with regard to the policy on sick leave, but has not been clear as to the actual number of staff taking sick leave.
- Regarding escapes, can the department please elaborate on the actual types of escapes that are happening.

Mr Mahlangu (ANC, Mpumalanga) asked the following questions:
- Allegations of corruption and complicity are raised in the committee as they are brought to committee members' attention. Yet only when the media make these allegations, does the department admit to the problem. How does the department reply to the allegation that prisoners are used as 'hit squads' and that inmates continue their criminal activities from inside the prison by communicating with outsiders.

Response
Mr Mbete: Regarding overcrowding - this is not caused by sentenced prisoners. If we remove the awaiting trial prisoners from the system, we would return to a system of 'normality' with the system overloaded in total by about 8000 prisoners. Awaiting trial prisoners are not managerially the responsibility of correctional services, and hence any plan that is constructed to deal with it has to involve collaboration with the other departments. As someone who has been in the department for less than a month, I realise that this is an issue that has been on the table for a long time. But the committee can be assured that action will be taken now : other role players must be pushed until plans are implemented.

Mr Sokupa continued: Plans need to be made in the short, medium and long term. An action plan should be ready by next week. Justice is addressing the issue of awaiting trial prisoners which will entail renovation of buildings, APOPS and the construction of new buildings. Urgent issues will be addressed in the short term plan, with electronic monitoring not only being implemented for parolees, but also for awaiting trial prisoners.

Mr Mbete: Regarding hit squads and syndicates - investigation will have to be done by the responsible department. The correctional services department is dealing with one of the three fundamental areas of societal 'brokenness' : health, poverty and crime. Correctional services have been mandated to manage the resources that deal with this 'brokenness'. There is a tranferrance of crime in that criminals that they move from society into the prisons. The criminal mindset does not simply vanish, and the warders are constantly in contact with this criminal environment. I would nor be surprised therefore if this does happen as members of correctional services can be rendered susceptible to the influences of these elements. I have spent time in the last month walking around prisons, and I have been left depressed. Imagine how working in these conditions every day must affect the warders. If they are not strong people they can be drawn into the spiral of corruption and if they are strong people, it is not long before they are depressed and disillusioned. This does not make the situation right, but is a result of the conditions under which they work. It is the responsibility of correctional services not only to look after the prisoners, but also to look after the warders. Society must begin to look after the warders as people attempting to alleviate the situation for society.

Mr Gillingham answered the question relating to unsentenced juveniles:
There are currently 28 337 juveniles in the prison system with 15 000 awaiting trial / unsentenced.

Mr Mataka replied to the question on sick leave:
With about 34 000 members in the Correctional Services Department, annual sick leave figures are as follows ( total number of days taken in the department per annum):
1998 392 199 days
1999 252 932 days

Further questions
Mr Matthee (NNP, KwaZulu-Natal) raised the following under follow-up:
- Awaiting trial prisoners are a problem that is not going to go away - they may be reduced, but this is not a realistic expectation in the next year or two. The fact of the matter is that Justice, in spite of their responsibility for awaiting trial prisoners do not have prisons or cells, and Correctional Services will still have to provide them. A plan is therefore required from Correctional Services.
- Regarding the shortage of staff in the department - what is the situation with regard budget required to alleviate the problem, and how many staff members are needed?
- Regarding escapees who are granted parole - why are they required to go back to court as parole is not granted by the courts but by the parole board.

Mr Ackermann (NNP, Western Cape) asked the following questions:
- The action plan is going to be ready next week, but the debate is taking place tomorrow. You have indicated that a meeting is taking place this afternoon, but will the outcome of this meeting be communicated with the committee in the debate tomorrow?

Mr Lever (DP, North West) asked the following questions:
- Where does the action plan fit into the budget - the short, medium or long term? Could it be that there is no provision in the budget for short-term plans?
- The figures relating to sick leave are difficult to work with in the way that they are presented here. What on an average day in the year is the percentage of absenteeism. What is the quantity of shortage of staff and are they mostly in any specific category of staff or is it a general shortage across the board?

Response
Mr Mbete answered as follows:
- The results of the meeting with Mr Picoli will be passed on for the debate.
- Regarding the budget for dealing with the problem of overcrowding, the issue has been on the table for a long time and the budget must be allocated. Correctional services is taking control of the new Empangeni prison next Thursday and this will help alleviate the problem if only in that region. In the Western Cape the departments of Welfare and Justice have opened spaces especially for juveniles. In Gauteng, John Vorster Square has about 3000 holding cells (which are currently managed by Justice) which can be used. Immediate responses are therefore being found. This needs to be supplemented with the adding of capacity through new buildings. By the end of 2003 it is estimated that the required capacity of prisons will have to be around 215 000 prisoners with a budget of R 29.5 billion being required to fulfill this. 3000 beds will be required to be added every month to keep the staff : prisoner ratio at 1 : 80. The shortfall for this year is R 186 million, and for 2001/2002 it will be R 475 million, and by 2002/2003 R 704 million.

Mr Mataka replied to the question of required staff as follows:
The department currently has 34 735 members, with the ideal number being 47 719 members. The current budget contains a provision for 5 586 more members.

The Chair elected to end the discussion at this point due to time constraints, but asked the department to reply to individual members' queries on an individual level.

Mr Mahlangu asked Mr Lever to take over as Chair for the following session.

Protected Disclosures Bill
Messrs Johan de Lange and Henk du Preez from the Department of Justice
briefed the committee. Mr de Lange referred members to the Bill and outlined the main tenets as follows:
The Bill stemmed from the Open Democracy Bill and the decision to remove the 'whistleblower' provisions from the Open Democracy Bill. The 'whistleblower' provision was referred back to the Department of Justice, and has resulted in the Protected Disclosures Bill.

The Bill relates only to the relationship between employer and employee, and seeks to protect an employee, whether in the private or the public sector, from being subjected to an occupational detriment on account of having made a protected disclosure.

Protected disclosures can be made to legal representatives, lawyers, Ministers and Provincial MECs, special persons (e.g. Attorney General, Public Protectors), or any person where no specific provisions to the contrary have to be met.

In order for the disclosure to be able to be made to a legal representative, the legal representative, must in the course of his/her normal duties give legal advice (such as shop stewards). The disclosure must also be made for the purpose of obtaining legal advice on the matter.

If the disclosure is made to a lawyer, the disclosure must be made in good faith, and must follow prescribed procedure, should there be provision for such procedure.

If the disclosure is made to a Minister or Provincial MEC, then the requirements are that it is made in good faith, and that the employer is appointed by the Minister or is a body appointed by the Minister or under his control.

If the disclosure is made to a Special Person, then the requirements are that the disclosure is made in good faith, and that the impropriety is dealt with by that person in the normal course of their duties, and the allegation or information must be believed to be substantially true.

If the disclosure is to be made to any other person, then the requirements are that the disclosure must be made in good faith, that the employee reasonably believes the information to be true, and that any one or more of the conditions prescribed exist and the employee believes that by making the disclosure that they will suffer occupational detriment, that the employer will destroy or conceal evidence, or when no action has resulted from a previous disclosure.

Clause 10 states the practical guidelines as published in the Gazette.

Discussion
Mr Lever (DP, North-West) asked whether this is strictly confined to the employee / employer relationship? When will this be implemented?

Mr de Lange replied that this has posed a very difficult question for the department. Representation by IDASA has been to add an amendment to involve the Labour Court / CCMA, and serious consultations are being engaged to enable this. These will address the reference to Labour Court / Clause 4 and take instruction from the Minister regarding Nedlac, and these issues will be resolved by the end of next week. If the Bill is accepted in its present form, then implementation will be due for the end of the year.

Mr Mahlangu (ANC, Mpumalanga) asked of Clause 4 - what relief will be granted in the case of an interdict against the employer where damages can be proved. Will these be provided in accordance with Labour Law remedies.

The Chair asked for clarification as to why the Portfolio Committee went ahead with the bill in spite of the fact that it only relates to the employer / employee relationship, when this may need to become more complex to deal with all disclosures.

Mr de Lange replied that he was not in a position to speak on behalf of the Committee, but that the basic reasoning was that the risk to a person is much bigger in the employee / employer relationship, as well as the fact that it is more difficult to define in other relationships. This Bill has been modelled on the British system, and the Committee is reluctant to go beyond the scope of what has been proven elsewhere in the world.

Mr Mahlangu asked what implication this would have at provincial level, and it so, how much will this entail?

Mr de Lange replied that the only implication will be in printing and workshops for disseminating the legislation. There will be no extra staff or new establishments necessary.

Mr Matthee (NNP, KwaZulu-Natal) asked whether the legal opinion which has raised concerns on the Bill was gained before or after drafting of the Bill.

Mr de Lange replied that this opinion has only been raised after drafting.

Mr Mahlangu asked whether the department has come up with a response to these issues, and will this be forwarded to the committee on completion?

Mr de Lange replied this will be done.

Mr Mahlangu noted that this issue is scheduled for debate next Thursday, but proposed that this should be postponed until these questions have been answered.

Firearms Control Bill
Advocate Kok stated that the Department's intention for this Bill was to address the concern that firearms violence has not been properly catered for. The need has been identified for additional resources and structures to help the SAPS to curb firearms force. The aim of the Bill is to facilitate the effective use of additional resources to contain the current problem. The Bill recognises legitimate needs to own more than one firearm (for hunting or sport for example) without disadvantaging effective control. The Bill is designed to facilitate effective police investigation and prosecution under the Bill, with an additional focus on increased control on state-owned forearms and the establishment of a database of privately owned firearms.

Ms Barbara Holtman briefed the committee regarding changes which have been made to the Bill. She stated that the Bill needs to be seen as one of many mechanisms for dealing with firearms violence. Concerns regarding implementation have been addressed with training, capacity building and resource development. 300 posts have been approved and recruitment is under way to build capacity. Dedicated police officers have been trained at station level, as well as providing for the streamlining of the firearms registry. An amount of R 217 million additional funds will be needed for the massive upgrade of technology that will be required to cope.

There is the need for increased compliance with the law for civil society - not to excuse non-compliance, but to campaign against the general lack of compliance with the law. A rejection of criminal behaviour is required, with an end to complicity in the family, neighbourhood and schools. A partnership must be developed with NGOs to reject the culture of violence as a whole - particularly among the youth.

The following alterations have been made to the Bill:
· Ordinary citizens may own a maximum of 4 firearms, with both a shotgun and a handgun allowed to be licensed for self-defence purposes.
· A third firearm in the form of a semi-automatic weapon may be licensed for self-defence in specific circumstances.
· Active sports weapons will not be limited if legitimate need can be demonstrated.
· People who currently own more firearms than are permitted under the new Bill, will result in them having to apply for a licence as a collector, and would need to comply with legitimate requirements as a collector to be able to keep their firearms.
· There has been a reduction in Ministerial Powers in that the emergency powers given to the minister may only be invoked after a state of emergency has been declared.
· Ammunition quotas can be exceeded once authority has been obtained.
· Semi-automatic weapons can be licensed for use in sporting endeavours
· Fully automatic weapons can be licensed for film and other such use
· Licence holders over the age of 25 may allow someone else to use their licenced firearm under their direct supervision.
· Regarding the Constitutionality, the present version includes all presumptions in the earlier versions. The only significant alteration has been made as a result of the recent Constitutional Court judgement in the case of S v Manamela where the presumptions have been evaluated again. As a result of this case, any reverse onus provisions have been left out which means that the accused is not required to bear the onus of proof that he / she was not in possession of the weapon. But it does limit the right to silence as the courts must establish reasonable doubt.
· In the case of administrative fines being imposed, the option has been included for the person to opt for a hearing in criminal court.

Discussion
Mr Matthee ( NNP, KwaZulu-Natal) asked the following questions:
- Regarding clause 15 (2) - what needs to be proved in order to show a need for a firearm for self defence?
- Will the clamping down on legal owners of firearms ensure that criminals are prevented from using firearms in crime, as only a small percentage of firearms stolen from legal owners are used in the commission of crime versus the large numbers lost by the security forces?
- What is the situation if one uses a firearm licenced for sport in self defence?

Adv Kok replied that it is a serious problem that firearms are lost and stolen both from private and state sectors. Provisions in the Bill will require the better controlling of firearms in all sectors.

Mr Matthee asked whether this was not the current situation?

Adv Kok replied that the department was currently under-resourced to do this effectively. The Bill provides a framework for action as it should have been happening up to now. Regarding the obtaining of licences in the case of a need for self defence - this need should be fairly easily demonstrable and should not differ from what should currently be the standard practice but is not.

In reply to the question relating to the use of a sporting firearm for self-defence, common law allows for the transgression of law in an emergency situation.

Ms Lubidla (ANC, Northern Cape) asked what would be the case if a firearm was inherited, but a need could not be shown for the necessity to retain it for self defence purposes.

Adv Kok replied that special provision had been made for this situation which stated that the firearm could only be used once it is licenced.

The meeting adjourned.

Appendix 1:
BRIEF SUMMARY

PROTECTED DISCLOSURES BILL [B 30 - 2000]

1. The Bill prohibits subjecting a worker to an occupational detriment on account of having made a protected disclosure. (clause 3)

2. A disclosure is protected if it is made in accordance with the Bill. (clause 1)

3. A protected disclosure can loosely be described as any disclosure of information regarding an impropriety, that is an offence or a malpractice, having been committed by an employer or an employee of that employer. (clause 1)

4. In order to be protected, a disclosure must be made in one of five methods:

  • to a legal representative (clause 5)
  • to an employer (clause 6)
  • to a Minister or provincial MEC (clause 7)
  • to a specified person or body (clause 8)
  • to any other person, as a general protected disclosure (clause 9)

each of these methods have certain requirements which must be complied with. The least, or the fewest, requirements are applicable in respect of a disclosure made to a legal representative and the requirements become more comprehensive as one moves up the ladder. The most comprehensive requirements are being set in respect of the ''general disclosure''.

  1. the said requirements are generally the following:
  1. Legal representative:

(i)he persons (legal representative's) occupation must involve the giving of legal advice.

(ii) the information must be given for the purpose of obtaining legal advice.

b) Employer

(i) good faith

(ii) in accordance with a prescribed procedure, if applicable.

c) Minister

(i) good faith

(ii) the employer must be - an individual appointed by that Minister in terms of legislation; a body appointed by that Minister in terms of legislation; or an organ of state falling within the area of responsibility of that Minister.

d) Specified person

(i) good faith

(ii) the impropriety must in the ordinary course be dealt with by that person.

(iii) the information and allegation contained therein must be substantially true.

e) General protected disclosure

(i) good faith

(ii) the employee making the disclosure must reasonably believe that the information is true.

(iii) one or more of the following:

- the employee must believe that he or she will be subjected to an occupational detriment if the disclosure is made to the employer; or

- the employee must believe that the employer will conceal or destroy evidence relating to the impropriety if the disclosure is made to the employer; or

- no action was taken in respect of a previous disclosure to the employer; or

- the impropriety is of an exceptionally serious nature.

6. if an employee is subjected to an occupational detriment in contravention of the Bill, that employee may approach any court or tribunal having jurisdiction for protection. Any employee who has made a protected disclosure and who reasonably believes that he or she may be adversely affected on account of having made that disclosure, must, at his or her request and if reasonably possible or practicable, be transferred from the post or position occupied by him or her at the time of disclosure to another post or position in the same division or another division of his or her employer, or, where the person making the disclosure is employed by an organ of state. The terms and conditions of employment of a person so transferred may not, without his or her written consent, be less favourable than the terms and conditions applicable to him or her immediately before his or her transfer. (clause 4)

7. the Minister of Justice and Constitutional Development may make regulations regarding matters which may be prescribed in terms of the Bill. (clause 10)

8. the Minister must issue practical guidelines which explain the provisions of the Bill, which guidelines must be approved by Parliament and published in the Gazette.

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