Minister of Correctional Services: Briefing; Judicial Inspectorate of Prisons: Briefing; Committee Oversight Report: adoption

Meeting report

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
15 May 2005
MINISTER AND JUDICIAL INSPECTORATE OF PRISONS: BRIEFINGS; COMMITTEE OVERSIGHT REPORT: ADOPTION

Chairperson:

Our bursting Prison by Judicial Inspectorate of Prisons
Judicial Inspectorate of Prisons: Memorandum on Statutory Notifications: Segregation, Mechanical Restraints, Solitary Confinement, Correctional Supervision or Parole on Medical Grounds
Committee Report on oversight visit to prisons in Mpumulanga and North West [available shortly at Committee Reports]
Regional Commissioner for Baviaanskloof Youth Centre Report (see appendix 1)
Committee Chairperson’s Media Release on the incidents at Groote Schuur and Baviaanskloof Prison (see appendix 2)
Impact of Coming into Operation of Correctional Services Act III Of 1998 (As Amended) (see appendix 3)

SUMMARY
The Minister of Correctional Services briefed the Committee on the recent incidents in Baviaanskloof Youth Centre and at Groote Schuur Hospital. He gave a summary of each incident and highlighted the main problem areas.

The Judicial Inspectorate of Prisons presented their findings on the current statistics on overcrowding. Now that the Correctional Services Act 1998 was fully operational, they highlighted the main changes to systems and procedures, and made some suggestions for amendments which would improve the working of the Act. They particularly mentioned current parole conditions, which led to longer terms being effectively served before an inmate was eligible to appear before the Parole Board. They made a strong plea that the minimum sentencing legislation, introduced as a short-term measure by the Criminal Law Amendment Act 1997, should not be renewed after 30 April 2005. This legislation was strongly opposed by judges, magistrates and prosecutors and appeared to exacerbate the problems of over-crowding, when other sentences would be far more effective. Minimum sentences had not proved to have any deterrent effect. The Committee felt strongly that the proposals would not be supported by the public, and were not themselves convinced that the conclusions drawn from statistics were correct. The Committee indicated it would not support the request not to renew the minimum sentencing legislation.

The Committee adopted some corrections to their draft report on their oversight visit to Mpumulanga and North West, and resolved to refer the report to the Department, and thereafter to table and debate it in the House.

The Chairperson read out a media briefing by the Committee on the incidents at Baviaanskloof Youth Centre and Groote Schuur Hospital, condemning the incidents and expressing condolences to the families of those injured and killed.

MINUTES

Minister’s report on Baviaanskloof Youth Centre and Groote Schuur Hospital
Minister N Balfour reported that Baviaanskloof Prison, comprising maximum and medium security prisons and a juvenile centre, was one of the new generation prisons which was electronically guarded with very secure facilities. Youths in the juvenile centre served up to ten years of imprisonment. On Sunday 13 March, two juveniles, aged 17 and 20 years (who were in the process of being reviewed for release) had managed to escape during recreation time and made their way to the hospital section, where they had been employed for some time as cleaners. They attacked two nurses with a knife stolen from the kitchen area, injuring them very severely. It was not as yet known how the youths managed to get past the security cordon at recreation time; how they managed to get into the hospital wing on a Sunday; or why the nursing staff had not been immediately alerted warders to a possible problem. A full criminal investigation was underway and a full report on the incident would be presented to the Committee. This incident highlighted the need for constant vigilance and was a reminder that no matter how sophisticated the security systems, the individuals in charge could still breach them, whether deliberately or negligently. It was further a reminder that rehabilitation would not always succeed. The Minister had visited the prison and the victims of the assaults.

The second incident had taken place on 14 March at Groote Schuur Hospital, in a public area. An awaiting-trial Pollsmoor inmate (who had previously tried to escape) was being taken by Correctional Services officials to hospital. This information had obviously been passed on to the inmate’s friends, who attempted to assist an escape. One Correctional Services official had been killed, another injured, and the inmate was shot and his escape foiled. His accomplices had fled. The Minister had visited the inmate, a man aged 27, who displayed no remorse. This incident raised the problem of security and who should be responsible for transporting detainees to hospitals or courts. It further raised the importance of obtaining a profile of detainees to determine whether they were ‘high-risk’. It raised the debate whether awaiting-trial prisoners should be kept in prisons or in other secure places. These problems would be discussed within the cluster. A full report would be submitted shortly for consideration by the Committee.

Discussion
The Chairperson stated that the Committee would support strong action being taken to try to avert future incidents.

Mr J Selfe (DA) asked what would be the likely effect of these incidents upon the medical staff employed by the Department of Correctional Services (DCS). Medical staff was already scarce. He asked whether the security plan, mentioned in previous presentations, had been implemented, and whether it took account of this type of incident.

The Minister replied that the main cause of the shortage of staff had been comparatively low salary ranges, but these conditions had been reviewed. He hoped that this incident would not have an adverse effect upon DCS’s attempts to recruit. The security plan was in place, training had started, ratios of staff to inmates were being adjusted, and attempts were being made to introduce the plan in high-risk areas as a starting point. DCS wanted to identify one centre as a super-maximum prison and Kokstad was a likely centre, as it had the necessary infrastructure and superior facilities. This still did not address the problem of awaiting trial detainees (ATDs) whose profile had not yet been compiled, and this was one of the issues being addressed by the cluster to try to reach a situation where sentenced prisoners and Awaiting Trial Detainees (ATDs) could not interface.

Judicial Inspectorate of Prisons on the impact of the Correctional Services Act
Judge J Fagan, Inspecting Judge of Prisons, stated that he had been impressed with the report of the Committee which had been adopted in November. He then gave a brief history of the legislation on correctional services, and reported that all sections of the Act were now in operation. The Act was a well-constructed piece of legislation, and both the Act and the Regulations were clear in their instructions to correctional services officials. Certain sections were not being properly implemented, but he ascribed this to the overcrowding which made it impossible to comply with provisions such as exercise periods, learning and so forth. In general, the Judicial Inspectorate welcomed the implementation of the whole Act, subject to some reservations that he detailed for the Committee.

The release provisions of the Act came into operation on 1 October 2004, dealing with community correction, release from prison and placement under correctional supervision, and parole.

Section 76(6)(a) required a prisoner to serve half of a sentence before being considered for parole. The former Act (Correctional Services Act No. 8 of 1959) allowed for credits to reduce this period down to one-third. The Judicial Inspectorate believed the old system created valuable incentives to rehabilitation and good behaviour and recommended that the credits should be retained and the Act amended accordingly.

Section 73(6)(b)(v) required a prisoner sentenced in terms of the minimum sentence legislation to serve at least four-fifths of the sentence before being considered for parole, as opposed to the half time allowed to other prisoners. The Judicial Inspectorate wished to have this provision deleted as it effectively amounted to a double punishment. He pointed out that minimum sentences applied in a number of different crimes and had a huge impact on overcrowding. He stressed that consideration for parole did not mean release and that the Correctional Services and Parole Boards retained their discretion whether the requirements had been adequately fulfilled.

Section 73(6)(b)(iv) required those sentenced to life imprisonment to serve at least 25 years before placement on parole. Under the former Act the discretion vested in the parole boards, who reported to the National Council for Correctional Services, who in turn made recommendations to the Minister. Generally, parole had been considered after twenty years. The Judicial Inspectorate recommended that the 25-year provision be deleted and that it be left to the discretion of the National Council for Correctional Services who were eminently suited to determine the position.

Section 78(1) empowered the Court to grant parole. The former Act had appointed the National Council for Correctional Services as the considering body. The Judicial Inspectorate recommended that the National Council should be reinstated, as it had the necessary expertise.

Section 79, dealing with medical parole of an ill prisoner, was worded far more restrictively than the former Act. The Judicial Inspectorate recommended that the wording be reconsidered and more discretion be allowed to the Department. Currently, parole could only be granted to those "in the final stage of terminal illness". There were inmates who, although not in the final stages of illness, nonetheless needed 24-hour care, assistance with basic bodily functions, and special diet. The old Act had taken account of a wider range of circumstances to enable prisoners to die a dignified death. About 2000 prisoners per annum currently died in prison. Statistics from 2003 showed that even under the old Act, only 117 prisoners of the 1 683 who had died while in custody, had been released on medical grounds.

A further problem with the new Act was that it was not retrospective, so that only those prisoners sentenced after October 2004 would fall under the new provisions, leading to inconsistency. He was very worried that implementation of these provisions in their current form would lead to an impossible state of overcrowding.

Judicial Inspectorate of Prisons on statutory notifications
Mr Umesh Raga, (Manager: Legal Services, Judicial Inspectorate of Prisons) reported that the Act made it compulsory for the DCS to give notification in certain circumstances to the Inspecting Judge of Prisons.

Section 30 required notification of all instances of a seven-day segregation, or extended segregation. By agreement, this was done electronically via the website. Segregation could be ordered following the prisoner’s own request; if prescribed by a medical officer; where violence or the threat of violence existed; if an escapee had been recaptured; or at the request of the police services. Since July 2004 more than 1000 notifications had been received, the majority at prisoners’ own request. The Judicial Inspectorate, having considered the notifications and undertaken some investigations, recommended that Department build in a monitoring mechanism (perhaps involving the Independent Prison Visitors (IPVs)) to ensure that all segregations were accurately reported, that training was given in the procedure, and that the segregation was extended to instances where the integrity of an investigation could be adversely affected.

Section 31 of the Act required notification of all instances of the use of mechanical restraints, other than handcuffs or leg-irons. 109 cases had been received since July 2004. The Judicial Inspectorate and DCS believed this exception should be extended to hand-ties and belly-chains. They further proposed that where restraints were coupled with solitary confinement or segregation, the case must be referred to the Inspecting Judge, and that a prisoner subjected to these restraints must be advised of his right to refer the matter for review.

Section 25 provided that the Inspecting Judge must review any proposed penalty of solitary confinement. The legislation required the DCS to conduct a disciplinary enquiry and health assessment when it intended to impose this penalty. Since 31 July 2004, it had become clear that DCS’s disciplinary officials had received inadequate training in conducting these hearings, and that there was lack of understanding of the distinction between segregation and solitary confinement. The Judicial Inspectorate therefore recommended that DCS build in a monitoring mechanism to ensure accurate reporting, and that there should be extensive training.

Finally, Mr Raga dealt briefly with the release on parole on medical grounds, stating that the judgement in the Stanfield case had set out the most important provisions and considerations. The Judicial Inspectorate was in favour of a wider discretion since only a very small proportion of inmates who qualified for release to permit them to die in a dignified manner among family members were in fact granted this facility, and the new Act made the requirements even more stringent.

Judicial Inspectorate of Prisons on minimum sentence legislation
Judge Fagan tabled a memorandum entitled "Our Bursting Prisons" which indicated that prisons in South Africa were grossly overcrowded, leading to appalling conditions, human rights abuses, and inability to conduct any meaningful rehabilitation. Four out of every 1 000 South African were in prison - one of the highest statistics in the world and the worst statistic in Africa.

The immediate aim should be to reduce the number of awaiting trial prisoners from 49 000 to 20 000 and sentenced prisoners from 136 000 to 100 000. The number of awaiting trial prisoners was falling, due to efforts by the Justice Department and the SAPS to expedite trials, but the number of sentenced prisoners was increasing. This was in the main attributable to the minimum sentence legislation, and had been exacerbated by the longer time periods set out before consideration for parole under the new Correctional Services Act. A large number of prisoners who should have been released on bail were unable to pay the bail, and another large number sentenced to fines of less than R1 000,00 or imprisonment, were similarly unable to pay their fines and remained in prison. These circumstances needed urgent review.

Minimum sentences were introduced by the Criminal Law Amendment Act (No 105 of 1997), for a range of offences in reaction to the perceived increase in crime and in an attempt to introduce harsher deterrents. These provisions were considered an emergency measure, and had to be extended by the President with concurrence of Parliament. They have been extended to 30 April 2005.

Statistics showed that the increase in prison overcrowding was directly attributable to the minimum sentence provisions, and that longer sentences (more than ten years) had increased dramatically. The Judicial Inspectorate, all judges and magistrates, prosecutors, the Legal Aid Board and the Chief Justice were strongly of the view that the minimum sentence legislation should not be extended beyond 30 April 2005. The latest figures by SAPS showed a decrease in crime, therefore there was no justification for extending it. The harsh sentences displayed a vengeful attitude out of step with the move to rehabilitation and forgiveness. There was no evidence that the provisions had any deterrent effect – indeed the only meaningful deterrent was certainty of arrest and punishment. The overcrowding in fact increased crime through lack of rehabilitation and more difficult reintegration into society. Prescribing minimum sentences generalised punishment, rather than treating each case on its own merits. It undermined the discretion of the courts that were properly trained in sentencing procedures and considerations. It also caused delays in the completion of cases that had to be remitted for sentencing. The legislation, for all these reasons, was not justified, and caused massive costs, both in monetary terms and to society.

Discussion
Mr J Selfe (DA) questioned whether more efficient systems of apprehension and conviction would not simply increase the problem of overcrowding in prisons, and he urged members of the Committee to think carefully about alternatives.

Mr C Molefe (ANC) was concerned about the statistics showing that South Africa had the highest record in Africa for incarceration, since other countries still retained the death penalty. He expressed dismay that a large number of people remained in jail through reason of poverty. He felt that other solutions to the problem of overcrowding should be examined, such as divergence of sentencing and punishment. Mr Molefe was not convinced that the minimum sentence provisions were indeed the main cause of overcrowding as he felt that the report had not examined all other possibilities. He felt that the increase in the number of prisoners could be attributed to positive efforts on the part of police and justice officials, rather than the negative results of the legislation or efforts by DCS. He also believed that abandoning these provisions would not assist society, as there would be an upswing in violent crime. He asked for a breakdown of the lengths of sentences and types of crimes subject to the minimum sentence provisions.

Mr S Mahote (ANC) suggested that if ATDs could be removed from the prisons and placed in another facility that would substantially reduce the problem of overcrowding. He too expressed doubts whether the minimum sentence legislation was the main cause of overcrowding.

Ms S Seaton (IFP) said that Parliament had given much consideration to the minimum sentence legislation and she believed that overcrowding was rather the result of the bottlenecks resulting from transformation. It would be beneficial to society if parole were made more difficult.

Mr N Fihla (ANC) pointed out that the decision to introduce minimum sentencing was made after consulting civil society. He queried whether the overcrowding arose from minor offences. He could not agree with the sentiment that minimum sentencing showed a vengeful attitude as he believed too little emphasis was given to the victims and their families. He believed that longer time before parole was a deterrent.

Judge Fagan replied that society did need to be taken into consideration, and was a factor in considering sentences. However there were times when popular opinion would sway society to perform terrible injustices. He believed Parliament should do what was right, not what was popular, and that the right action would be to give the discretion back to trained judicial officers.

Mr B Biyela (IFP) expressed his concern about any set time being imposed before consideration for parole. He believed that justice would only be seen to be done if each case were to be considered on its own merits.

Ms L Chikunga (ANC) disagreed that the provisions of the old Act in regard to parole on medical grounds were sound. She did not feel that pregnant women should necessarily be eligible and objected to pregnancy being cast in the same category as illness. She supported the provisions of the new Act.

Mr U Raga pointed out that the provisions of the old Act had not put pregnancy in the same category as illness. The Judicial Inspectorate was not making out a case for exactly the same wording to be reintroduced, but merely for a greater discretion to be given to medical officers.

Judge Fagan agreed that each case should be treated on its own merits, as suggested by Mr Biyela. Judicial officers believed that the minimum sentence legislation led to unnecessary generalisation. He reiterated that judicial officers were properly and fully trained in matters of sentencing, which took society and victims of crime into account. Their training and experience would provide a far better result that a prescriptive generalisation.

Judge Fagan stressed that if minimum sentencing were removed, this did not mean that serious punishments would fall away. Serious and effective sentencing had been given before there were any minimum sentences. Appeal procedures further ensured a fair degree of consistency and justice. In the past, judicial officers had retained discretion to suspend a portion of a sentence, and this had been removed by the minimum sentencing legislation. He believed that there was a high proportion of prisoners who, as a direct result of the minimum sentence legislation, were receiving sentences that were disproportionately long, and that if discretion were retained by judicial officers, they could address these particular problems, and ease the overcrowding in prisons.

On the question of a deterrent effect, Judge Fagan stressed again that many criminologists and professors had concluded that long sentences were not a deterrent and nor was the existence of the minimum sentencing provisions.

He reiterated that the legislation was intended, at the outset, to be a temporary measure, and it had arisen in part in response to the disquiet in some circles engendered by the removal of the death penalty. He urged the Committee to take the opinions of the judicial officers into account.

Mr C Molefe felt that undue emphasis was being placed on the judicial officers and not sufficient investigation had perhaps been done into the full causes of overcrowding.

Judge Fagan replied that the Judicial Inspectorate was in favour of everything possible being done to reduce overcrowding. He agreed that unnecessary arrests and unaffordable bail were also problems, and these had been mentioned in the reports and would have to be addressed. However, it was not true that sentences imposed for lesser crimes caused more overcrowding than longer sentences – and those long sentences were now compounded by the lack of ability to suspend a portion, and by the longer timeframes before parole.

Mr N Fihla stated that a poor perception had been created by the release of Mark Thatcher, who had managed to escape imprisonment by being able to pay a substantial sum of money, and the imprisonment of other less wealthy people involved in the same incident. This type of matter was a strong argument for minimum sentencing.

Judge Fagan reminded the Committee that the Thatcher matter had been settled by way of a plea bargain, which had not come before a judge, so that it did not involve sentencing at all, although he would agree that each offender should receive the same opportunities.

He stressed again that parole was never automatic and even after release on parole, offenders would be subject to community correction and to supervision. He also wanted to impress upon the Committee that the absence of minimum sentencing provisions did not mean that all sentences would be shorter, but that each case would be specifically weighed on its own merits and the number of inappropriately long sentences would be reduced.

Mr C Molefe suggested that perhaps the matter needed to be more fully debated, when specific examples could be raised. He still felt that a number of issues had not been fully addressed. He also felt that too little reporting had been made on offenders who were perhaps not capable of being rehabilitated.

The Chairperson was concerned that if the minimum sentence provisions were to be removed, there would be an adverse reaction from society. Furthermore, the statistics from the SAPS showed a reduction in crime, which led him to believe that the minimum sentences had been an effective deterrent.

The Chairperson stated that the Committee would not support the proposal that minimum sentencing not be extended and would convey its view to the Departments of Justice and Correctional Services.

The Committee took no decision on the remainder of the proposals put forward by the Judicial Inspectorate of Prisons.

Report on the Committee’s oversight visit to prisons in North West and Mpumulanga
The draft report on the Committee’s oversight visit was tabled. The visit was undertaken to identify the impact of overcrowding. Members met with staff to discuss their concerns, in particular disciplinary problems and lack of respect among staff. They identified concerns around juveniles in prison and interacted with the IPVs and Legal Aid Board.

Mr J Selfe proposed certain corrections to the report, which were mainly of a grammatical nature. He pointed to two inconsistencies where one part of the report had been corrected but another part had not, and the Committee agreed to bring those items into line with each other.

It was agreed that the report, as corrected, would be accepted and forwarded to DCS. DCS would have three months to consider it and revert to the Committee, and the matter was diarised for mid-June. The report would in due course be tabled and debated in the House.

Media release on incidents at Baviaanspoort and Groote Schuur
The Chairperson reported that after the Minister’s briefing, he had prepared a press release on behalf of the Committee, to express concern and dismay about the incidents at Baviaanspoort and Groote Schuur. The Chairperson read the release in the meeting. In answer to questions from SAPA and SABC, he clarified that the full reports would be made very shortly by DCS to the Committee, which would consider the matter again after the recess.

The meeting was adjourned.

Appendix 1:

DEPARTMENT: CORRECTIONAL SERVICES MEMORUNDUM

SECURITY BREACH; BAVIAANSPOORT YOUTH CENTRE

1, Telefax message dated 14 March refers.

2. A report free of gaps will be compiled at a later date based on the official investigation's report.

3. From my on the spot assessment on the day of the incident and the following day I can respond to your concerns as follows'.

3.1 One juvenile offender who is serving a two year sentence for house breaking and theft had been employed as a cleaner in the clinic for a considerable period,

3.2 The Juvenile offender was. suspended a few days ago from his duties after he was found in possession of dagga,

3.3 The juvenile offender was able to get past one or two security checkpoints in his section and. then proceeded to the third checkpoint where he was allowed in by one of the two nurses as they knew him very well as someone working with them as "a cleaner".

3.4 1 am not prepared to repeat untested information on how the offender went past the first security checkpoint as I have appointed an investigation team for that purpose.

3.5 The juvenile offender used kitchen knife to order around the two nurses ,He got the kitchen knife from the kitchen with which he was very familiar.

4. It may be necessary to state that all our security breaches around the country are

due to one or more of the following', (a) Negligence of particular employees on duty; (b) collusion by certain employees on duty; (c) inadequate supervision, of an offender due to » lower security risk rating: (d) infrastructural weaknesses; (e) sophisticated planning of operations by offenders with accomplices; (t) non- enforcement by certain, employees of routine security procedures due to familiarity.