Correctional Services Bill: discussion

Meeting report

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
19 August 1998
CORRECTIONAL SERVICE BILL: DISCUSSION

Document handed out
Summary of submissions on the Correctional Services Bill (see appendix)

The meeting entailed Mr Paxton going through the summary of submissions prepared by the Department indicating whether the department was in favour of the recommendation or not (not noted in these minutes).

Comments and questions by committee members:
Clause 2
Mr Gibson (DP) wanted to know whether the department agreed with the CSVR’s submission in terms of Clause 2. Mr Paxton responded that the department did not have a problem with the organisation’s submission but, from a legal point of view, it seems as though the committee may be burdening the Bill.

Clause 7
This clause deals with accommodation. The South African Human Rights Commission (SAHRC) feels that it is necessary to include "bedding" as one of the requirements for good conditions within prisons. Mr Bloem (ANC) felt with the current overcrowding in prisons, this provision might be difficult to fulfill. Prisoners could then sue the department because the Bill specifically makes provision for bedding. According to Mr Nel (ANC), the Department should regulate the term and in doing so, the term "bedding" should not be a problem.

Clause 8(4)
This clause deals with meals for prisoners under medical care, for example, those prisoners suffering from diabetes. There is a suggestion from HRC that these meals should be regular. The department supports this.

A committee member raised the concern that meals must be regular for all prisoners. Mr Paxton explained that this clause deals specifically with prisoners receiving medical treatment. Meal times for regular prisoners will be dealt with in a latter clause. Mr Bloem (ANC) seconded this answer.

Clause 10
Mr Gibson felt that the wording in Clause 10 is too loose: the department must provide clothing except where this act allows a prisoner to retain or acquire his/her own clothing. According to him the Bill is saying that the department does not necessarily have to provide clothing. The state legal advisor pointed out that the words "must provide" implies that the department is obliged to provide clothing. Mr Gibson responded by saying that the words "except where this Act allows" rules out that obligation. He added that in his opinion the wording was incorrect.

Clause 12
The HRC submission proposes that any prisoner has the right to receive emergency healthcare at state expense. The department supports this proposal. Mr Bloem's concern was that by adhering to this proposal, they may be burdening the government and he added, "What if a prisoner goes to a private hospital at state expense?" A committee member responded that it is not possible to take a prisoner to a private hospital without the department authorising this.

Clause 13
The SAHRC makes the recommendation that the onus is on the department to inform the family or next of kin if a person is being transferred or if s/he is being detained in a particular prison. The department does not however support this amendment.

Mr Nel suggested that the department be obliged to inform the family as to where the prisoner is being held within 24 to 48 hours.

Consequent to Mr Nel's request, Mr Paxton will provide information in next week's meeting regarding the "reaction units" which pertain to Chapter 13.

Clause 21
The Department has no problems with the proposals from HRC and SAHRC.

Clause 23
The department does not support the deletion of certain phrases in this clause regarding disciplinary infringements as suggested by HRC.

Appendix
SUMMARY OF SUBMISSIONS ON CORRECTIONAL SERVICES BILL [B65-98]
A :General
Abreviations:
South African Human Rights Commission- S.A.H.R.C
Human Rights Committee- H.R.C
Centre for Study of Violence and Reconciliation- C.S.V.R
Inspecting Judge- I.J
Department of Correctional Services- D.C.S
Pelican Park Rehabilitation Centre- P.P.R.C
SA Prisoners After-Care League- P.A.L
South African Revenue Services- S.A.R.S

BContents of Proposals

1.Clause 1
DCS - Pg 14 line 36 "Act No. 11 of 1978" should read " Act No. 110 of 1978."

2.Clause 2
CSVR - On grounds of the "residuum principle" they want to add the following on pg 16 at line 28.

Insert section 2(2) as follows:
2(2) The correctional system must recognise the inviolate rights of all prisoners, which shall include the principles that:

a)with due regard to the fundamental differences between sentenced and unsentenced prisoners, all prisoners retain all the rights accorded ordinary citizens other than those which re expressly limited within the confines of the limitationspermissible by the Constitution and those who are necessarily incompatible of being detained in a prison or being subject to a non custodial sentence of a court;

b)all disputes relating to any rights, legitimate expectations, interests, privileges, amenities or gratuities of prisoners shall be justifiable in a court of law subject only to provisions of this Act or regulations mandating a prisoner to exhaust internal remedies;

c)all decisions negatively affecting any rights, legitimate expectations, interests, privileges, gratuities or conditions of release or sentence of an individual prisoner, probationer or parolee shall be required to be made after following fair procedures and to be substantively reasonable.

SAHRC - Also at pg 16 wants to include the following:

The Commission recommends that a general section setting out the principle of non- discrimination in the treatment of prisoners be introduced into the bill. In addition. A section setting out the safe custody of property belonging to prisoners should be included.

3.Clause 3
DCS - Pg 16 line 44 remove subclause 3(5) to pg 76 and insert as a new subclause 5 at line 48.

4.Clause 4
DCS and SAHRC - Pg 18 line 26 and 27 delete the words "and may not be" and substitute "or" and add "5" to the word "purpose".

5.Clause 7
PAL:They want to limit the obligations of the Department in terms of the accommodation that must be provided.

HRC -7(1) Prisoners must be held in cells which meet the requirements prescribed by regulation in respect of floor space, cubic capacity, lighting, ventilation, sanitary installations, bedding and general health conditions. These requirements must be adequate for detention under conditions of human dignity.

6.Clause 8
HRC- 8(1) Each prisoner must be provided with a diet as prescribed in the regulations. The diet prescribed must be adequate to ensure the good health of prisoners.
8(4) The medical officer may order a variation in the prescribed diet for a prisoner and the intervals at which the food is served, when such a variation is required for medical reasons.

7.Clause 10
Clothing and Bedding
10 The Department must provide every prisoner with clothing and bedding sufficient to meet the requirements of hygiene and climatic conditions, except where this Act allows a prisoner to retain or acquire appropriate clothing or bedding

8.Clause 12
PAL - Suggests an inclusion of the right to donate organs.

HRC - Suggests the following amendments:

12(1)The Department must provide primary health care services in order to allow for the physical and mental well-being of every prisoner.

12(2)(a) Every prisoner has the right to emergency medical treatment at state expense.
(b) Every prisoner has the right to adequate medical treatment at state expense, but no prisoner is entitled to cosmetic medical treatment at state expense.
(c) Medical treatment must be provided by the medical officer or by a person or institution identified by the medical officer, expect where the medical treatment is provided by a medical practitioner in terms of subsection 3.

12(3)(a) Every prisoner may be examined by a medical practitioner of his or her choice and may be treated by such medical practitioner.
(b) A prisoner who is examined or treated by a medical practitioner of his or her choice is personally liable for the cost of the examination and treatment.
SAHRC -Health Care
12(1) The Department must provide primary healthcare services in order to allow every prisoner to lead a healthy life.

(2)(a) Every prisoner has a right to adequate medical treatment, expect that no prisoner is entitled to cosmetic medical treatment at state expense.
(b) Medical treatment must be provided by the medical officer or by a person identified by such medical officer, except where the medical treatment is provided by a medical practitioner in terms of subsection 3.

(3)(a) Every prisoner may be visited by a medical practitioner of his or her choice and may be treated by such medical practitioner.
(b) A prisoner who is visited or treated by a medical practitioner of his or her choice is personally liable for the costs of any such visit or treatment.

(4)(a) Every prisoner should be encouraged to undergo medical treatment necessary for the maintenance or recovery of his or her health.
(b) No prisoner may be compelled to undergo medical examination, intervention or treatment without informed prior consent unless failure to submit to such treatment will pose a danger to the health of other persons.
(c) Except as provided in subsection (d), no surgery may be performed on a prisoner without his or her prior informed consent, or in the case of a minor with the prior written consent of his or her legal guardian.
(d) Consent to surgery is not required when, in the opinion of the medical practitioner who is treating a prisoner, the intervention is in the interests of the prisoner’s health and the prisoner is unable to five such consent, or in the case of minor when it is not possible or practical to delay in order to obtain the consent of his or her legal guardian.

9.Clause 13
SAHRC - The department takes responsibility for contacting relatives after admission or transfer, with the assistance of prisoners.

10.Clause 14
PAL - Recommends a proviso to the effect that a prisoner may change to another religion.

11.Clause 18
HRC - Suggests the following amendment:
18(1) Every prisoner must be allowed access to available reading material of his or her choice, unless such material has the potential to threaten the safe custody of the prisoner of other prisoners or the safety of the correctional officials.

DCS - Suggests the following amendment omit the words "or is not conducive to his or her rehabilitation "

SAHRC - Remove limitations in clause

12Clause 21
HRC - Suggests the following:
Section 21(2) The official referred to in subsection (1) must B
(a) record all such complaints and requests and any steps taken in dealing with them;
(b) if the complaint concerns an alleged assault;
(i) ensure that the prisoner concerned undergoes an immediate medical examination and receives the prescribed treatment; and
(ii) ensure that the prisoner is given adequate opportunity to lay a charge with the South African police.
(c) deal with complaints and requests promptly and inform the prisoner of the outcome.

SAHRC - Recommends specific procedures introduced for complaints dealing with alleged assaults, and medical related issues. In addition, the Committee to consider building in a monitoring role for the Judicial Inspectorate with regard to assault complaints.

13.Clause 22
DCS - Clause 22(4) - Change "may" to "must"
SAHRC - States it is dual punishment.

14.Clause 23
HRC - Suggests the following:
Section 23(1): A prisoner commits a disciplinary infringement if he or she:-
(e)[is careless or negligent with regard to any labour or duty imposed or authorised by this Act];
(f) uses [insulting, obscene or] threatening language;
(g) [conducts himself or herself indecently by word, act or gesture];

PAL - Comments that the disciplinary infringements should be more flexible.

SAHRC - Definition of disciplinary offences be narrowed

15. Clause 24
PAL - Request legal representation at informal hearing.

HRC - Proposes Section 24(4)(e): has the right to be represented by any person, except a fellow prisoner, a correctional official or an official of the South African Police Service or the Department of Justice.

SAHRC - Express provision for legal representation.

16. Clause 25
PAL - Recommends an amendment that their should be no contact with other prisoners whilst in solitary confinement.

IJ -Clause 25(1) Delete the words " within three days" and substitute "as soon as practicable"

DCS - Recommends that clause 25(5) be reworded to read as follows:
25(5) If a registered nurse or psychologist has reason To believe that solitary confinement poses a threat to the health of the prisoner he or she must immediately report the matter to the medical officer.

HRC - Recommends the following:
Section 25 (1) [a penalty of] Solitary confinement must be referred to the inspecting Judge for review. The Inspecting Judge must within three days confirm or set aside the decision or penalty and substitute an appropriate order for it.
Section 25(2) [The penalty of] Solitary confinement may only be implemented after the medical officer has examined the prisoner and certified that the imposition of solitary confinement will not pose a danger to the physical or mental health of the prisoner and after the Inspecting Judge has confirmed such penalty; provided that where solitary confinement is imposed in terms of
section 25 (5), implementation may take effect immediately but for a period not exceeding three days.
Section 25(3) A prisoner in solitary confinement must be [visited] assessed at least once every six hours by a correctional official, [and] at least once a day by the Head of Prison, a medical officer or a registered nurse [or] and a psychologist.
Section 25(4) If a registered nurse or psychologist has reason to believe that solitary confinement poses a threat to the physical or mental health of the prisoner, he or she must immediately report the matter to the medical officer.
Section 25(5) Solitary confinement may be imposed under the following under the following circumstances;
(i) When a person displays violence, is threatening violence or is threatened with violence;
(ii) If a prisoner has been recaptured after escape and there is a reasonable suspicion that such prisoner will again escape or attempt
to escape.
An additional provision must be inserted to allow for the monitoring of prisoners in solitary confinement by an independent prison visitor.

17.Clause 26.
CSVR - (a) Recommends that in subclause (1) the words " the custody of cell prisoners" should read "the safe custody of all prisoners"
(b) Recommends clause 26(2)(a) be amended (line 23) to read " and seize any object or substance which the prisoner is prohibited to possess."

18.Clause 27
CSVR - Recommends the deletion of the words "upon reasonable grounds"
A further comment on clause 27 is that the pattern of the Criminal Procedure Act should be followed;
"30 Disposal by police official of article after seizure
A police official who seizes any article referred to in section 20 or to whom any such article is under the provisions of this Chapter delivered-
(a)may, if the article is perishable, with due regard to the interests of the persons concerned, dispose of the article in such manner as the circumstances may require; or
(b)may, if the article is stolen property or property suspected to be stolen, with the consent of the person from whom it was seized, deliver the article to the person from whom, in the opinion of such police official, such article was stolen, and shall warn such person to hold such article available for production at any resultant criminal proceedings, if required to do so; or
(c)shall, if the article is not disposed of or delivered under the provisions of paragraph (a) or (b), give it a distinctive identification mark and retain it in police custody or make such other arrangements with regard to the custody thereof as the circumstances may require."

27(2) A search of the person of a prisoner is subject to the following restrictions; (d) searches contemplated in subsection (1)(c), (d), (e) and (f) must be authorised by a medical officer and in the case of a search contemplated in subsection (1) (c), (d) or (e) the search must be carried out by a medical officer, while in the case of a search contemplated in subsection (1) (f), the search must be supervised by a medical officer.

SAHRC - Recommends that the use of force be made subject to a test of reasonable necessity, and that provisions are made for immediate medical attention thereafter. In addition, the Commission recommends that certain tests be carried out by medical officers, rather than by correctional officials.

19.Clause 30
HRC - Recommendssection 30 (1)(d)(e) be omitted from the section. In the event of violent behaviour as displayed by a prisoner or where there is an attempted escape, such a prisoner must be subjected to a disciplinary hearing as provided for in section 24 (4) resulting in solitary confinement.

IJ - Delete "appeal against the decision" and substitute "refer the matter"

20.Clause 31
CSVR - Recommends:
A distinction should be made whether it is inside or outside prison clause 31 (4) should provide for the recording of details.

21.Clause 32
HRC - Recommends:
Section 32 (1) (b) A minimum degree of force must be used and the force must be necessary in the circumstances and proportionate to the objective sought to be achieved.
Section 32(5): If force is used against a prisoner the prisoner must be examined by a medical practitioner immediately after the incident and the medical officer must record all injuries.

CSVR - 32 (1) (a) Delete " every correctional official is authorised to use all lawful means to detain in safe custody all prisoners"
- 32(2) It is untenable, force may only be used to contain violent behaviour.

IJ - Clause be amended to provide for compulsory medical examination if force is used.

22.Clause 33
CSVR - This clause should provide for the making of regulations.

SAHRC - The bill should be amended to provide that before being approved for use, devices referred to in this section must be certified by an independent medical doctor as to being incapable of resulting in permanent damage.

23.Clause 34
CSVR - 34(4) delete " when the legal requirements of self-defence are present"

HRC - Section 34(3) A firearm must be used [in the manner prescribed by regulation] only when the legal requirements of self-defence are or when the safe custody of a prisoner or the safety of other prisoners/persons is threatened.

24.Clause 35
CSVR - This clause should also provide for training in the use of weapons and provide for the making of regulations.

25.Clause 37
PAL - This clause should be subject to safety regulations.

26.Clause 38
HCR - 38(1)(j) Assessment to ascertain the prisoner’s physical and mental health needs must take place within 24 hours.

27.Clause 40
PAL - Comments that clause should be more flexible.

28.Clause 43
HRC - Section 43(3) A prisoner must be examined by the medical officer or registered nurse before his or her transfer. Where such prisoner is being treated by a medical practitioner, he or she must not be transferred until the prisoner has been discharged from the treatment or the transfer has been approved by the medical officer[after consultation with the Head of Prison].

PAL - Clause should address conditions of transfer.

29.Clause 45
HRC and DCS - Section 45(1) A sentenced prisoner must be prepared for placement, release and reintegration into society by participating in a pre-release programme.

30.Clause 46
SAHRC - Recommends that time served in an institution be automatically reckoned as part of a sentence.

31.Clause 55
PAL - Comments that it is unfair to let prisoner pay for board and lodging.

32.Clause 57
HRC - Insert Section 57(2) All medical information is confidential and may only be released with the consent of the prisoner.

33.Clause 58
PAL - Clause should define "privacy" more clearly.

34.Clause 59
PAL - subclause (5) prisoner should be informed in writing.

35.Clause 62
PAL - Clause should provide for a job creation officer.

36.Clause 73
SAHRC - Recommends that section 73(4) be redrafted so as to oblige the Head of the Community corrections to refer a matter to the Area Manager, where the complainant is dissatisfied with the initial response.

37.Clause 74
HRC - Section74(2) Any sick prisoner whose sentence has expired but whose release is certified by the medical officer to be likely to result in his or her death or impairment of his or her health or to be a source of infection to others, must be transferred to an appropriate medical institution for ongoing health care, under supervision of the medical officer [temporarily detained until his or her release is authorised by the medical officer].

38.Clause 80
HRC - Section 80 Any person serving any sentence in a prison and who, based on the written evidence of the medical practitioner treating that person, is diagnosed as being in the terminal phase of a life-threatening disease or condition, may be considered for placement under correctional supervision or on parole, by the Commissioner, Correctional Supervision and Parole Board or the court, as the case may be, for palliative care purposes.

39.Clause 81
PAL - Comments that period of remission should be longer than 2 years.

40.Clause 85
HRC - Recommends that clause be added that a report on prison population be submitted to them quarterly.- Section 85(2) The Minister must refer draft legislation and policy developments that will have an impact on the correctional system to the NationalCouncil for its comments and advice.

SAHRC - Recommends that the National Council have oversight of all legislation relevant to prisons, and that consideration be given to providing a specific mandate to monitor overcrowding in prisons.

41.Clause 88
HRC - Section 88(1) From time to time the Inspecting Judge may, after consultation with the Minister, appoint one or more persons with a legal , medical or penological background.
.
42.Clause 91
IJ -91(2) Delete "or" in line 9 and add after Visitors’ Committee "or an Independent Prison Visitor, and may of his or her own volition deal with any complaint".
-anti-corruption be removed from the clause it belongs with Public Protector.

HRC - Proposes Section 91(4)(b) The report must be tabled in Parliament within 14 days of receipt by the Minister
- Clause should provide that extra ordinary reports be submitted to the Portfolio Committee.
- anti-corruption be removed from the clause it belongs with Public Protector.

SAHRC - the previous wording be retained in relation to the appointment of prison visitors;
- the Inspectorate table its own reports in Parliament;
- the Inspecting Judge be empowered to re-allocate management areas for the purposes of
Visitor’s Committees;
- Heads of Prisons forward lists of awaiting trialists to the Inspecting Judge at regular intervals;
- The Commission be included as an agency who may forward complaints directly to the Inspecting Judge.

43.Clause 93
IJ - 93(1) Delete the word"may" and substitute "as soon as practicable"

HRC - Section 93(1) The Inspecting Judge must , after calling for nominations and consulting with community and non-governmental organisations in the designated area appoint Independent Prison Visitors.

44.Clause 94
IJ -94(5) Add after the word"urgency" in line 14 "or in the absence of such a committee"

45.Clause 95
IJ - 95(1) Delete the whole subclause and substitute the following "Where appropriate the Inspecting Judge may establish a Visitors’ Committee for a particular area carsisting of the Independent Prison Visitors appointed to prisons in that area."

46.Clause 100
HRC - Comments that SA Human Rights Commission should be included as people with access.

SAHRC - Recommends that the South African Human Rights Commission is included in section 100(1) and that provision is made for inspection by other Human Rights Agencies.

47.Clause 101
CSVR - Comments that 101(2) be subject to section 40 of Criminal Procedure Act.

48.Clause 102.
CSVR - Comments that a correctional official should not have ordinary investigative powers.

49.Clause 105
HRC - The Contractor should be declared on organ of State.

SAHRC - Recommends that a provision stating that a contractor is declared to be an organ of state for the purposes of section 8(1) of the Constitution be inserted in section 105 of the Bill.

50.Clause 107
HRC and DCS - Delete subclause 107 (2)(c).

SAHRC - Recommends that the Bill be amended to empower a Director of a joint venture prison to request a disciplinary hearing, and to implement the penalties, under the monitoring of the Controller.

51.Clause 117
SAHRC - The Commission recommends that provisions be introduced into the Bill to regulate the removal of prisoners into the custody of other agencies.

52.Clause 128
PAL - Comments harsher penalty for this offence.

53.Clause 131
PAL - Suggests a longer period then 12 months for institution of action.

54.Clause 133
SARS - Recommends that the word "facilities" is to wide.
- That references to tax, value- added tax, duty and customs and exise duties be deleted.

55.Clause 134
HRC - The following be added.
134(1): The Minister must before making regulations under this Act,
(a) publish the draft Regulations in the Gazette for public comment within a specified time;
(b) send copies and invite comment on the draft Regulations from -
(i) any relevant Ministry,
(ii) any relevant organisation.
(iii) the Portfolio Committee on Correctional Services
(c) consider all comments timeously received;
(d) on request, report on the extent to which a specific comment or comments have been taken into account or if a comment was not taken into account, provide reasons therefore.
134(2) the Minister must, within 30 days after making a regulation under this Act, table it in Parliament.

56Comments of PPRC
This are not included in summary because it is a general commentary with no specific proposals as to different clauses.