Correctional Services Amendment Bill [B31-2007]: briefing

CORRECTIONAL SERVICE PORTFOLIO COMMITTEE
24 August 2007
CORRECTIONAL SERVICES AMENDMENT BILL: BRIEFING

Chairperson: Mr D Bloem (ANC)

Documents handed out:
Presentation on Correctional Services Amendment Bill
Correctional Services Amendment Bill [B32-2007]
 
Relevant documents:
Explanatory Memorandum on the Objects of the Bill (see Appendix)
Mother's behind bars may lose their kids: News Article (see Appendix 2)
Correctional Services Act, No 111 of 1998 

Audio recording of meeting

SUMMARY
The Committee was briefed by the Department of Correctional Services on the motivation for the amendment of the Correctional Services Act. The issues addressed were: community participation in rehabilitation and social integration of offenders, incarcerated mothers with children in custody, introduction of the elements of the offender rehabilitation path, humane treatment of inmates, improved administration of parole, correctional supervision and parole board and streamlining the functions of Judicial Inspectorate. 

The Committee asked the Department to clarify the amendment that ensured that courts would not be entitled to prescribe to the executive branch of government how long a convicted person should be detained. Another important issue discussed was who would care for children once they were removed from their imprisoned mothers at two years of age.

MINUTES
Department of Correctional Services (DCS) briefing on the Bill
Mr Tebogo Motseki (Chief Deputy Commissioner); Adv Millicent Malebye (Legal and Special Operations); Ms C Strydom (Sec to Commissioner); Mr C Paxton (Director: Code Enforcement) ; Dr R Mbuli (Director; Legal Services) and Judge S Desai (National Council for Correctional Services) were in attendance.

Adv Malebye explained that the current Act needed to be amended in order to align it to the White Paper on Corrections of South Africa of 2005 with its emphasis on correction and rehabilitation. The White Paper had brought policy in line with the Bill of Rights in the Constitution that defines a human rights environment within which the DCS must operate.

The Bill dealt with improving the administration of Correctional Centres, ensuring the humane treatment of inmates, public participation in rehabilitation and re-integration, a framework in determination of parole and compulsory participation in certain programmes for offenders.

She then went into detail about the substance of the following amendments (see document):
- Community participation in rehabilitation and social re-integration of offenders
- Incarcerated mothers with children in custody 
- Introduction of the elements of the offender rehabilitation path
- Humane treatment of inmates
- Improved administration of parole and Correctional Supervision and Parole Board
- Streamlining the functions of Judicial Inspectorate to enhance the monitoring of humane treatment of inmates in correctional centres. 

In talking about improving the administration of parole, Ms Malebye said that the Bill introduces 'the incarceration framework' which replaces all the minimum consideration periods in the current Act.
The incarceration framework will allow the Minister, as an executive authority, in consultation with the National Council on Correctional Services (NCCS), to determine these periods.

She explained that historically the executive had the power to regulate parole. Currently the judiciary can influence the administration of parole by introducing non-parole periods. This position had being criticised by the courts. In the Botha v State case, the judge stated, “A court has no control over the minimum period of the sentence that ought to be served by such a person. A recommendation of the kind encountered here is an undesirable incursion into the domain of another arm of state, which is bound to cause tension between the judiciary and the executive."

Ms Malebye said that courts are not entitled to prescribe to the executive branch of government how long a convicted person should be detained, thereby usurping the function of the executive.

Discussion
Mr N Fihla (ANC) asked what the department meant by “interfering with another arm of the state”? Did they mean that the parole board had the power to make decisions about the release of an inmate on their own without the interference by another body? Mr D Bloem (ANC) added to Mr Fihla’s question by saying that he wanted to understand the issue of separation of powers. Was the Committee not interfering with the powers of the court by doing that?

Judge Desai replied that persons refused parole by the parole board had not reached the end of the road. There could be reviews by other bodies and the person could also consult the Minister on the matter. He added that an offender could not be considered for parole until they had served half of their sentence; however this had caused chaos, because some people seem to think that they are entitled to it. Thus the Department is simply trying to address this expectation.

On the question of state interference in another arm of the state, Judge Desai said that the Act regulates the process of release. The decision to release a prisoner needs expertise and the court’s interference should be limited. 

Bishop Tolo (ANC) asked who would look after the children after they had been released from their mother’s care whilst she is in prison. He recommended that there should be a house within the premises of the prison which would house the children who have been released from the care of their mothers.

Judge Desai replied that the question of the child was very difficult. International practice dictated that it was wrong to keep a child in prison past two years of age because after two years a child has to learn to play with other children. He believed that international practice was the best and that this recommendation was also in the best interest of the child. Judge Desai raised the point that politicians must find a solution to what happens to the child after being released from their mother’s care whilst the mother is in custody.

Ms W Ngwenya (ANC) asked the Department to clarify what it meant by improving the administration of the correctional centres.

Judge Desai clarified that the Department of Correctional Services wanted to consolidate the section into one clause.

Bishop Tolo (ANC) asked what the difference was between an “offender” and an “inmate”.

Judge Desai replied that an inmate was someone who was inside the prison and an offender was a convicted prisoner. So an inmate was a prisoner who had not yet been convicted.

The Chairperson’s response to the Judge’s answer was that the translation only catered for English and Afrikaans speakers and not for other languages such as Sepedi.

Mr Motseki agreed that they as a Department would look into the language and translation and would get back to the Committee with regards to that.

The Chairperson concluded the meeting by saying that there were many things that needed to be debated with regard to the amendment of the Act and they would need to meet with the Department again. He further said that communication had to be maintained.

Appendix:
MEMORANDUM ON THE OBJECTS OF THE CORRECTIONAL SERVICES AMENDMENT BILL, 2007

1. OBJECTS OF BILL
The Bill seeks to amend the Correctional Services Act, 1988 (Act No. 111 of 1998),
in order to align it with the White Paper on Correctional Services by addressing the
following principles contained in the White Pater:
• Correction: Aiming at addressing the offending behaviour of sentenced
persons;
• Security: Aiming at addressing the safety of inmates, officials and members
of the public;
• Facilities: Ensuring that the Department has a long-term facilities strategy to
ensure conditions consistent with human dignity for offenders;
• Care: Intending to address the well-being needs of inmates including access
to social and psychological services;
• Development: Providing for skills development in line with departmental and
national human resource needs;
• After Care: Intending to ensure successful re-integration through appropriate
interventions directed at both the inmate and relevant societal institutions.

2. PERSONS/BODIES CONSULTED
• National Council for Correctional Services
• Justice, Crime Prevention and Security Cluster

3. FINANCIAL IMPLICATIONS FOR STATE
The implementation of the Bill will be covered by the implementation plan of the
White Paper within the normal Medium Term Expenditure Framework.

4. PARLIAMENTARY PROCEDURE
4.1 The State Law Advisers and the Department of Correctional Services are of the
view that this Bill must be dealt with in accordance with the procedure established by
section 75 of the Constitution since it contains no provision to which the procedure set
out in section 74 or 76 of the Constitution applies.
4.2 The State Law Advisers are of the opinion that it is not necessary to refer this Bill
to the National House of Traditional Leaders in terms of section 18(1)(a) of the
Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003),
since it does not contain provisions pertaining to customary law or customs of traditional
communities.

Appendix 2:
Mother's behind bars may lose their kids: News Article on Independent Online (IOL) by Siyabonga Mkhwanazi  25 August 2007

Women in jail who have children aged between two and five years old might no longer be allowed to keep them with them behind bars.

This is one of the proposals contained in the Correctional Services Amendment Bill, which was considered by the National Assembly's portfolio committee on correctional services on Friday.

There are currently 64 children under the age of five living in prison with their mothers.

Before 1998, women were allowed to keep children under the age of two with them in jail but this was changed upwards after 1998 because of concerns about a lack of resources for placing these children.

Presenting a submission in support of the bill, the department's advocate Millicent Malebye said research and international practice showed that it was in the interests of the children to keep them with their mothers in prison until the age of two.

A crucial time for a child's development is between the ages of six months and two years, Malebye told the committee.

"The viewpoint of the department of education is that the critical period for bonding and stimulation with the mother is ideal up to two years.

"Therefore if children are kept with their mothers in custody for longer periods they will have difficulty relating to others (including siblings, male figures and other children)," she said.

In terms of international practice, children are not usually kept in custody with their mothers for longer than two years.

Malebye said in the UK the cut-off was between nine and 18 months, in the US between 12 and 18 months and in Sweden and Malta it is up to one year.

Judge Siraj Desai, who chairs the national committee on correctional services, said this was a very difficult subject but pointed out that there were important factors that needed to be looked at.

"The guiding principle is: what is in the interest of the child?

"The best practice (in the world) indicates that it is not desirable to keep a child (in custody) more than two years.

"The child has to learn to play with other children. Keeping the child after two years it is difficult to rear the child," explained Desai.

He emphasised that when members of Parliament debated this bill, they needed to take into consideration what was in the best interest of the child.

Director for the Judicial Inspectorate of Prisons Gideon Morris told Weekend Argus there were currently 64 children under the age of five in jail with their imprisoned mothers.

Morris said 84 percent of the almost 2 500 female prisoners were mothers.

Morris said that after the children left their imprisoned mothers, they went into foster care, to a place of safety or to live with relatives.

Morris added that only 2 percent of South African prisoners were women - far lower than in the rest of the world, including developed countries, where the figure is about 7 percent.

The committee will hear further submissions from other interested parties next week