Jali Commission Report: Minister’s briefing

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
20 June 2006
JALI COMMISSION REPORT: MINISTER’S BRIEFING

Chairperson: Mr D Bloem (ANC)

Documents handed out:
Department Presentation: Implementation of the Recommendations of the Final Report of the Jali Commission of Inquiry

SUMMARY
The Minister and Department of Correctional Services briefed the Committee on the progress it had made with implementing the recommendations of the Jali Commission of Inquiry. The five-volume report and the accompanying executive summary could not yet be made available to the public however. The Department indicated that many of the recommendations made in the report were already part of its strategic objectives. Members were concerned that despite the light the Commission had shed on corruption, corruption was still rife in some facilities. They were also concerned about the Department’s relationship with trade unions, overcrowding and the time it took to finalise investigations and disciplinary hearings.

MINUTES
Chairperson’s introduction

After welcoming the Minister, the Commissioner and the Department’s delegation to the meeting the Chairperson sketched a brief background to the Jali Commission’s report.

On 27 September 2001 the President appointed a judicial commission of inquiry, chaired by Judge Jali, to investigate the allegations of corruption, nepotism and misadministration within the Department of Correctional Services (DCS).

The Commission started its work in Pietermaritzburg in KwaZulu-Natal in January 2002. It enquired into, reported on, and made recommendations with regard to the alleged incidents of
-corruption and misadministration;
-the procurement of goods and services for the Department;
-the recruitment, appointment, promotion and dismissal of employees;
-the treatment of inmates in the prisons;
-dishonest practices;
-the relationships between staff and inmates leading to illegal activities;
-alleged instances of non-adherence to department policies, norms and standards as well as
-alleged instances of violence and intimidation against the Department’s staff.

In addition to Pietermaritzburg, a number of other prisons were also identified for investigation: Ncome, Johannesburg, Pollsmoor, Pretoria, St Alban’s, Leeuwkop and Grootvlei amongst others which were added later. In December 2005 the President received the final report from Judge Jali. In February 2006 the President, in his State Of the Nation Address (SONA) said that the Department would implement the recommendations of the report.

The Chairperson assured the Department that the Committee was fully aware that the implementation of the recommendations would not be an easy task and would not happen overnight. The Committee was ready to assist wherever assistance was needed.

He was also aware that the whole process had not been a pleasant experience for the Department and certainly not for the National Commissioner of Corrections, Mr Linda Mti. The Grootvlei video had “really not been a good thing for the Department”. He believed however that the Department was capable of handling the matters raised in the report.

Minister Balfour’s opening remarks
The Minister of Correctional Services, Mr Ngconde Balfour thanked the Committee for its continued commitment to working with the Department. It was necessary for more people to work with the Department. He invited the media to go out and see what was happening in the correctional centers. The more they wrote about what was going on there the easier it would be for the community to understand the challenges that were facing not only the Department but all South Africans. Corrections was not only a departmental responsibility but was a responsibility for society at large.

He informed the Committee that the Jali Commission’s report consisted of five volumes plus the executive summary, which summarised most of what was contained in the reports and in the other internal reports the Judge had submitted to the Department. It was quite a mammoth task but he assured the Committee that work was ongoing and that the Department had processes in place to deal with the action that should be taken from now on.

The Department considered the Jali report in its totality particularly when considering safety and security and escapes. He said that escapes were always aided and abetted by officials within the Department. The Department addressed these issues in a holistic way. He reported that the two prisoners who had escaped from Middledrift two weeks ago had been captured and were back in a maximum-security facility in Kokstad. Part of the recommendations that came from the Commission assisted in these arrests being made. The security systems at Middeldrift enabled the Department to pick up everything that had happened. What was bothersome however was that officials in centres were not even aware that the CCTV cameras in those centres were working. The Department was able to see the entire escape on these cameras. To date the four officials who could be identified on this footage have been suspended. They were shocked when given notice of their suspension because they had been under the impression that the cameras were not working.

He assured Members that the Department was “getting there”. He felt that the “banter” in Parliament was helping to keep the Department on its toes.

He then presented the Committee with the process the Department would be following in relation to the implementation of the recommendations emanating from the Jali Commission.

The Department had already presented their anti-corruption strategy to the Committee. That briefing had covered the corruption prevention strategy, the work of the internal investigation and section components, and the Department’s partnership with the Special Investigative Unit (SIU) led by Mr Willie Hofmeyer. Once the Department had reported to the President on their analysis and implementation plan for the recommendations it would meet with the Committee again to do a briefing on the actual content of the recommendations. Today’s presentation should be seen as part of the Department’s information sharing with the Committee on the anti-corruption strategy as a whole.

The Department had, at all times, seen the Jali Commission and in particular the public attention it drew to the level of corruption within the Department, as government’s commitment to cleaning up corruption and as integral to their ant-corruption work.

The former Minister of Correctional Services, Mr Ben Skosana, had approached the President to set up a judicial commission to investigate corruption in eight management areas. The Jali Commission was established in August 2001 and had a three-month mandate to investigate corruption and serious maladministration in these eight areas. They began their work in February 2002.

Their terms of reference were to inquire into and report on incidents of corruption relating to various matters within the prisons that related to:

-incidents of non-adherence to Department policies, and deviation from national norms and standards;
-incidents of violence and intimidation against employees of the Department which affected the -proper functioning of the Department
-the extent of the implementation of the recommendations of past investigations;
-to make recommendations as to steps that could be taken in order to prevent the future occurrence of such incidents;
-to make recommendations as to steps that could be taken against any employee who in terms of the findings of the Commission was implicated in impropriety against the employer.

The Commission investigated from 2 February 2006 to 12 May 2005. Overall it cost the Department about R27, 5 million. The eight management areas were Durban, Pietermaritzburg, Nxome, Pretoria, Johannesburg, Leeuwkop, Pollsmoor, St Alban’s and Bloemfontein. In the process the Department received 11 interim reports from the Jali Commission and the Ministry finally received the final report from the President’s office in December 2005.

He emphasised that in reality the work of the Jali Commission ran parallel to the establishment of appropriate managerial control and authority over the Department by the current Commissioner. Much of the managerial process the Commissioner implemented supported both the former and the current Ministers. He has targeted and addressed the systemic problems within the Department that had led to the level of corruption, fraud and serious maladministration that had prompted Mr Skosana to approach the President.

The final report of the Commission was a mammoth document consisting of the following five volumes:
-systems and policies (Volume 1)
-misconduct issues not submitted by means of interim reports (Volume 2)
-misconduct issues within interim reports (Volumes 3,4 and 5)

The report bore testimony to the extent of the investigations that had been carried out. After receipt of the report the Department appointed a task team who prepared a user-friendly executive summary of the final report and conducted an analysis of the report in relation to the findings and recommendations of the Commission as well as developed an approach for implementation. This report was tabled with the management of the Department, was presented to him and would be presented to the President once a date has been set. Thereafter it would be made public.

He pointed out that as the Jali Commission’s report was a report to the President the Department was obliged to report back to the President and to wait on his direction as far as further reporting on the report. The executive report contained the names of people against whom action should be taken. This could not be made public yet.

In the period between the Jali Commission beginning its work and the finalisation of the report the Department had undergone a major albeit not yet complete transformation. This transformation very specifically and deliberately addressed a number of systemic and managerial problems that resulted in the situation the Department had found itself in, in 2001. Most of the Commission’s recommendations have already been addressed by the Department’s new strategic direction.

In conclusion he said that as part of the Department‘s continued engagement with the Portfolio Committee, it had submitted, through a letter to the Chairperson, a proposal on issues that it would like to present to the Committee. These included a comprehensive report on the results of investigations into previous incidents of escapes and non-compliance within the correctional centers.

Commissioner Mti’s opening remarks
The Commissioner added that having received the report from the President and then from the Minister he had set up a task team that made the report more reader friendly. They worked on how the Department intended to deal with the issues raised in the report. As far as systemic and policy issues were concerned he felt that the Department had gone a long way already. The greatest challenges would be around the new disciplinary cases. The other issues had already been addressed.

Department of Correctional Services Presentation
Adv Ndebele, a director within the office of the Commissioner, and responsible for the Inspectorate, briefed the Committee on the implementation of the recommendations of the final report of the Jali Commission of Inquiry. He briefly talked about the structure of the Commission’s final report and the work the Department had so far done in terms of the recommendations the report made. Prison overcrowding, trade unionism, gangsterism within facilities and recruitment irregularities were some of the issues raised in the report. Most of the recommendations in the report had already been overtaken or addressed by the Department’s new strategic direction. Further initiatives to be undertaken in an attempt to implement the recommendations included a project gearing the Department for rehabilitation, the introduction of a risk management system and a compliance improvement plan as well as the development of an ethics course in partnership with the Department of Public Service and Administration, South African Management Development Institute (SAMDI) and the University of Pretoria.

Discussion
Mr J Selfe (ANC) said that while he appreciated the difficulty the Minister had in giving the Committee the full report he had quoted quite liberally from it. It was difficult to know how to take the questions forward since the Minister gave some sort of idea as to what the report contained but had not given the actual report. He wondered when the Committee could realistically expect to be given the entire report or at least the executive summary of the report.

The Minister said that he hoped that the minute the President received his memorandum, and he was able to inform the Committee of the processes to be followed he would have permission to go ahead and make the report available. He would have loved for the Committee to look at the report but this protocol had to be followed.

Mr Selfe asked what progress had been made as far as disciplinary cases were concerned. He acknowledged the difficulties the Minister had spoken of as far as evidence was concerned. The Department had received 11 interim reports and the final report from the Commission had to his knowledge only given rise to 14 new cases. When the Commissioner met with the Committee on 25 June 2002 he said that he had been tasked with ensuring “that the processing of the interim recommendations of the Jali Commission, as that progressed through the various management areas, result in the development of a sustainable and clean investigative and disciplinary capacity within the Department”. Of the 250 disciplinary cases 135 were still outstanding. 29 of these were under investigation. Much time had elapsed and the Committee had been given assurances that the Department had the investigative and disciplinary procedures in place yet over half the cases still appeared to be outstanding. He asked what progress the Committee could expect and when the cases would be concluded.

He said that the presentation stated that many of the issues raised in the Commission’s report had been addressed in either the White Paper or the Correctional Services Act. He pointed out that the White Paper itself would take some 20 years to fully implement. He asked whether the Department was looking at fast tracking the implementation of aspects highlighted by the Jali Commission.

Commissioner Mti found the manner in which the question was preambled problematic. It gave the impression that he might have misled the Portfolio Committee when he made the comments in 2002. In June 2002 not a single report had been submitted yet. He might have come to the Committee and reported on how the Department intended to deal with the report once they had received it.

Not each and every case that had been reported could be easily dealt with. He was confident that the Department had dealt with straightforward cases quite decisively. Grootvlei for example was dealt with, while the Commission was still doing its investigation. The same applied to the case of the provincial commissioner of the Eastern Cape, which eventually led to his dismissal. He said that the number of cases that had been handled was not as important as the quality of the investigations into cases. It was not appropriate to create the impression that he had misled the Committee. Where there was enough evidence the Department dealt with cases appropriately.

He said that the notion that it would take 20 years for the White Paper to be implemented possibly pointed to the wrong understanding of the process. One would not have to wait for 20 years before implementing some of the measures spoken of in the report. Some of the measures have already been put in place or were in the process of being put in place. The totality of the implementation of the White Paper might take 20 years. The issues raised in the report would be prioritised and he was sure that the Committee would assist them.

He reiterated that the evidence available determined the speed at which one moved to finalise cases. If there was not enough evidence and further investigation was necessary it would take longer to finalise a case. One needed to be realistic. Many of the cases were pending because they would be difficult to prosecute and not because the Department was not dealing with the matters.

Mr Paxton added that in some cases the Department depended on other external agencies for information. If members of the public were involved in cases the Department’s internal capacity could not investigate and then depended on the Directorate of Special Operations (DSO) to provide information. The Jali Commission in some of the interim reports had detected fraud for example but such cases were handed over to the external agencies. After receiving such reports, the Department had to wait on outside agencies before they could continue their internal procedures.

Adv Ndebele said that the 135 cases were not part of the 250. The delays stemmed from the fact that these matters were still under investigation. Matters were handed over to the Department without enough evidence to prosecute. It was not accurate that the bulk of the 250 cases had not been dealt with. His presentation gave a breakdown of the make up of these 135 cases.

Commissioner Mti added that there were cases against individuals that were not in the interim reports but the individuals were the same.

Mr N Fihla (ANC) thanked the Department for the long-awaited report of the Jali Commission. He said that the recommendation relating to the Ombudsman for Correctional Services was a critical one. The Ombudsman suggestion was presented after the Committee returned from a visit to Denmark in 1995. The Judicial Inspectorate of Prisons (JIOP) was then brought into being. It was tasked with the monitoring of prisons. The Inspecting Judge was meant to perform the same duties as those of an Ombudsman. The Committee had wanted someone independent since up until that time prisons had been very secretive and no one knew what went on behind their walls. The then Minister, Mr Msimela, then came up with the Office of the Inspecting Judge, which would perform the same function as the ombudsman but would also monitor prisons. The Committee thought that the office would monitor corruption but was then told that this was not part of the JIOP duties.

The Minister responded that the report made mention of the ombudsman “guarding the guards”. The idea was that this function would fall within the JIOP. “Somewhere somehow” there was an amendment to the proposal. The Department would look at seeing whether they might be able to come up with such a function. He warned that it might have its fair share of problems and costs but could certainly be considered as a way also of assisting in the Department with its work. The issue had not been totally discarded and the report recommended that this function be within the JIOP.

Mr Fihla said that gangsterism in prisons was a problem across the world and the Department had tried to address it for many years. He felt that different categories of inmates should be separated and that gang members should be kept apart from other inmates. One had to categorise awaiting trial detainees as well as sentenced offenders so that gangsters could be isolated from the rest of the population.

Ms W Ngwenya (ANC) said that some of these issues were also frustrating the Committee especially since one thought that once one received a report decisions could be taken easily. She was worried about overcrowding especially in relation to awaiting trial detainees. The Committee on their oversight visits found that some children had been awaiting trial for up to three years – some had not been given bail, some could not afford the bail that had been set either because their parents could not afford it or because they were street children who had no access to money. The overcrowding in awaiting trial centers was a problem. The report made no mention of how to deal with the matter.

The Minister said that the report made interesting comments on overcrowding. It stated that the Department tended to mismanage overcrowding. He agreed with this sentiment. Overcrowding resulted from people “not wanting to say no”: in some instances officials did not shift inmates from overcrowded facilities to nearby facilities that were not that overcrowded. The Department encouraged area commissioners to try to move people around so that they could alleviate overcrowding. These efforts were on going.

Ms Ngwenya said that the Committee was also frustrated by the fact that officials appeared not to be serious about their work. The Committee felt that it could take action immediately but this was also difficult. The Committee should do something about this. The judges should be approached to assist in addressing this issue.

Ms Ngwenya was also concerned about pending investigations such as the recent death of a young woman at Pollsmoor prison. Such prolonged investigations were frustrating. She wondered whether the Department could give clarity on the progress of the investigation.

The Minister responded that the Pollsmoor investigation did not form part of the presentation and the report submitted by the Commission since it happened after the Commission had concluded its investigations. The case was still under investigation.

Ms E Maleka (ANC) asked whether unionism and the abuse of power by senior officials were linked. How did the Department deal with this?

Mr S Mahote (ANC) said that the Minister had alluded to the fact that there was harmony between the Department and the trade unions. He wondered whether an agreement had been reached as far as the fact that senior managers could be members of the union but not shop stewards was concerned. This could lead to a conflict of interest.

Mr E Xolo (ANC) said that Nxome was one of the management areas that were investigated; yet corruption was still rife there. Recently a man who had been sentenced to 10 years in prison and had served five already, paid R800 to “buy” his freedom. He had taken up the matter with the local newspaper but the reporter refused to give any further information

Commissioner Mti thought that greater clarity was needed about the context in which the Commission came into being. The five-year period had given the Department an opportunity to deal with some of the issues.

He said that abuse of power could happen in any institution. This was not necessarily related to union affiliation. Trade unions had definitely been crippling the Department. Unionisation had influenced appointment, recruitment, etc. Abuse of power had mainly occurred around appointments. He said that he always referred to the fact that there were people who had not deserved being appointed to senior management positions. The entire Department’s leadership had come from the unions. He has not been able to deal with this reality. There was favouritism that was based on people having to continue “the mandate”. The Department had to some extent dealt with the situation but has not dealt with individuals.

The Department did not allow senior managers to be shop stewards but was dealing with managers who had not “outgrown” their unionism. They thought “it was cool to still belong to a union and be a senior manager”. The Department continued to educate them that you could not be both. Whilst one might be sympathetic to a particular union a manager could not act based on his union affiliation.

By the same token he did not encourage politics. He said that Nxome was identified because it was a “political Springbok of KwaZulu-Natal in terms of Inkatha Freedom Party and the African National Congress”. He said that whatever happened in Pietersburg was planned in Nxome. The Jali Commission investigation of this facility had more to do with dealing with the problems related to politics than with corruption. This centre was to be investigated first but because it was such a “hot potato” they chose to start with Pietermaritzburg. He had changed the management of Nxome to ensure that there was stability because while corruption was not the main problem the facility was a “Springbok of destabilisation”.

There would still be corruption, even in Centers of Excellence. But it “would be wrong” to continue judging the Department based on the actions of individuals.

Minister Balfour said that Nxome was a “hotspot for all kinds of things”. He had been to Nxome for an Imbizo in April. He admitted that there were problems but things had now changed and things were mostly being done properly.

The Minister confirmed that the Department had an agreement with the unions. One could not expect that unions and the Department would always be in agreement on issues. Unions were there to protect the interests of the members. The Department was there to make sure that the work they were mandated to do got done. Judge Jali said “senior members who are in management positions should give an undertaking that when they make decisions they are not being influenced or trying to drive the agenda of a trade union or any organisation. The interest of the Department should be paramount at all times.” The Department tried to drive this message home.

As far as abuse of power was concerned Minister Balfour assured Members that such cases were being dealt with. He requested Members to wait on the report, to look at it in its totality, and to then enquire after the progress on specific cases. The Department was trying its best to be successful despite the fact that it was a difficult task and not easily performed. He said that it took “tough cookies” to lead the Department and to make some progress.

Ms Maleka asked whether the Department could give the Committee a realistic deadline by which time they would have completed the disciplinary hearings. Disciplinary hearings impacted on officials’ morale. They could not last forever. One needed to ensure that these hearings were conducted thoroughly while ensuring that they were finalised in the shortest possible time in order to keep employees’ morale positive so that strategic objectives could be met.

The Commissioner said that the Department did not enjoy having to deal with these cases but it was difficult to conclude them for the same reasons already given. Some cases had been sent to external agencies. There were some cases that could not be resolved. The Department could not always continue, “either being investigated by Jali or to deal with this”. He said that they were trying to “live their own lives”. At some time the Department wanted to appoint a task team that would fast track the implementation of the recommendations.

Ms S Rajbally (MF) wondered what actually caused the backlogs. Were they related to the juveniles who were still awaiting their trials?

The Commissioner said that the Department would continue to appreciate the Committee’s support in dealing with this problem. The Department could not “build over” overcrowding. Social crime prevention strategies needed to be put in place to assist in this regard.

Minister Balfour said that since the White Paper just came into operation there would be backlogs. The Department was doing a number of things to try and solve cases and needed the Committee’s assistance in dealing with this matter.

He added that the South African National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) would have a two-day long colloquium in Cape Town. They would try to assist with overcrowding. Judge Nathan Erasmus, acting Inspecting judge and Judge Bertelsmann also took part in the Morning Live broadcast that featured the colloquium. Judge Jali wrote “the Department of Correctional Services could not simply build more prisons to solve the problem of over crowding a fact that has been accepted by most criminology scholars”. The Minister agreed that the Department could not build themselves “out of this quagmire”. The judicial system had to help the Department. The biggest number of inmates was made up of awaiting trial detainees. With the judiciary’s assistance the numbers would drop. This was the sticky point.

Ms Rajbally wondered whether the building of new prisons would result in an increase in crime.

Ms Rajbally wondered how many already rehabilitated inmates were waiting to be released and how many rehabilitated individuals there were.

The Minister said that at some stage a survey would need to be done but it would be a difficult task. He did not know at what stage one could say that a person had been rehabilitated. A person was not steamed bread – one could not stick a knife in them to see whether they were ready for release. Dora Bell would be released soon and he prayed that she should not upon her release “do anything silly” that would land her in prison again. Someone would be there to say, “I told you so”. He could not with 100% certainty say that she had been rehabilitated but people needed to be given a second chance. He did not have accurate numbers. He would furnish the Committee with the numbers of people who were involved in rehabilitation programmes but emphasised that one could not with 100% certainty say that they were rehabilitated.

The Chairperson pleaded with Members to confine themselves to the report presented that day. The Committee would have briefings that would deal with any other specific issues. The Committee should focus on questions of clarification arising from that day’s briefing.

Mr Mahote wondered who was responsible for the acts of sexual violence against inmates.

Commissioner Mti responded that this question was difficult to answer in the correctional services context. Inmates might be abusing other inmates but “correctional services being what it is” officials were sometimes abusing inmates. He said that women abusing women was not common.

The Chairperson commented that he had reports of such abuse from Kroonstad facility.

Mr Xolo wondered how many new misconduct cases were not submitted through interim reports. He also asked whom these cases involved.

The Minister said that Judge Jali touched on parole boards in his report. By the time the report was finalised 52 parole boards had already been set up. They were all working to look at how numbers could be kept low and to ensure that those who qualified for parole got it. There was even a parole review board. He had already announced at the National Council of Provinces that there would be a Committee that would audit the sentences prisoners received, so that the Department had a better idea of the people in the facilities and whether they qualified for parole. The Commissioner was finalising the terms of reference for this Committee.

Mr Selfe said that by 22 June 2002 the Minister and the Commissioner had already received two interim reports. He said that the Commissioner should not be too thin skinned about this matter and should remember that they were all part of the same team despite the fact that they were playing different positions. He wanted to know whether all 250 cases in the report have been investigated or finalised and whether the 135 that still needed to be dealt with were new cases or repeated cases. He conceded that perhaps the Committee would be able to interrogate the matter better once they had the report, but in the meantime they had to interrogate the presentation that was made.

Ms Ngwenya pleaded with the Department to work with the South African Police Service so that investigations could be sped up and cases could be resolved faster.

The Chairperson suggested that Mr Selfe’s question be shelved for a later meeting since they had already tried to answer the question but the Member was visibly dissatisfied with the response he received.

The Commissioner assured the Committee that all the cases that had been reported had been analysed even though action had not been taken against all of them. The Department might still be in the process of dealing with the new cases. All reports have been analysed.

The Chairperson reminded all present that one did not deal with school children when one dealt with offenders. It was a very difficult matter. The Department should not feel guilty about the report. The Government should feel proud that they had instituted a commission of inquiry to look into the wrongs that had happened in the correctional facilities. He said that the concerns being raised today predated 1994.

The new Government was brave enough to say, “open the prison doors”. For the twelve years that he had been part of the Committee much had happened. Immediately after the Special Assignment investigation into Grootvlei and the screening of the Grootvlei video the Commissioner had visited the facility to address the matter. He said that the Department was serious about addressing the concerns raised in the Jali Commission’s report. The Committee needed however to be realistic and give the Department the time it needed to implement the recommendations. The Committee would monitor this implementation.

The Jali Commission was appointed almost immediately after the Commissioner took office. At the Commissioner had been unhappy that he had been appointed at a time when there was so much turmoil in the Department. The Chairperson felt that his deployment had been the right step. He urged the Minister and the Commissioner to not feel guilty. Correctional facilities have changed and became more transparent since 1994.

Committee Programme for third term
The Committee unanimously adopted its draft programme for the third term of Parliament.

Oversight Visit to the Eastern Cape
The Chairperson said that from 31 July until 4 August the Committee would visit correctional facilities in the Eastern Cape.

Mr Selfe wondered if it would be possible to visit Middledrift correctional facility during this trip. He thought it necessary to go there especially in light of the recent escape.

The Chairperson agreed that this facility would be visited too.

Mr Selfe asked what the objectives of the visit were. He thought it necessary for the Committee to start interrogating what the differences between centers of excellence and other correctional facilities were in order for them to know which questions needed to be asked when visiting them.

The Chairperson concurred and urged Members to submit possible questions to the Committee Secretary.

The meeting was adjourned.