Correctional Services Amendment Bill [B32-2007]: deliberations

Correctional Services

28 August 2007
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Meeting report

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
28 August 2007
CORRECTIONAL SERVICES AMENDMENT BILL: DELIBERATIONS

Chairperson:
Mr D Bloem (ANC)

Documents handed out:
Correctional Services Amendment Bill [B32-2007]

Audio recording of meeting

SUMMARY
The Department went through the Bill clause by clause and covered Clauses 1 to 47. The process allowed members to raise concerns and to flag clauses that required debate. Even though members were not encouraged to debate issues at length, certain issues were discussed. The issue of incarcerated mothers with children and what constituted solitary confinement were two such issues.

MINUTES
The Department delegation consisted of Adv Millicent Malebye (Legal and Special Operations); Mr Carel Paxton (Director: Code Enforcement); Mr Sabelo Mzenune and Mr Erns Kriek (Director: Pre-release). Ms B Lufundo represented the State Law Advisers and Mr Gideon Morris and Ms P Osman represented the Judicial Inspectorate. Mr N Vanara, Parliamentary Legal Adviser, was also present.

Adv Malebye was tasked with taking the Committee through the Bill. The Committee flagged concerns as they were encountered. The Chair emphasised that members would be allowed to comment extensively on the Bill later in the process. Most of the amendments related to changes in terminology such as renaming ‘prison’ as ‘correctional centre’ and ‘solitary confinement’ as ‘detention in a single cell’. However the flagged clauses were as follows:

Clause 1
Mr J Selfe (DA) said that the definition of “offender” in Clause 1(p) was in contradiction to the definition of “unsentenced offender” in Clause 1(v). The definition of an “offender” referred to a convicted person who had been sentenced whereas the definition of an “unsentenced offender” referred to a convicted person not yet sentenced. The problem was the use of the word “offender” within the definition of an “unsentenced offender” despite the fact that the latter referred to a person that had not been sentenced.

Adv Malebye explained that the intention was to make a distinction between an offender who had been sentenced and one that had not yet been sentenced.

Mr Vanara reiterated that there was a concern as the definition of ”offender” referred to a sentenced person whereas an “unsentenced offender” referred to an unsentenced person. There was still the use of offender in the latter definition. The state law adviser agreed that the clauses were problematic.

Mr I Vadi (ANC) suggested that perhaps two separate categories be created for sentenced offenders and unsentenced offenders.

Mr Paxton said that the Department would look into the matter.

Clause 13
The Chair had security concerns about this clause allowing for interaction between organisations and prisoners in facilitating rehabilitation. He asked what measures were in place to screen and verify the legitimacy of organisations entering prisons.

The Department’s response was that organisations would have to be accredited and that screening would also take place on the types of programmes that would be allowed.

Mr S Mahote (ANC) asked why it was necessary for the provision to be entrenched in law. He was concerned that the Department could be taken to court by organisations refused entry into prisons.

The Department pointed out that the word “may” was used in order for it to be a discretionary decision.

Mr Vadi agreed that the provision was open to abuse and that organisations needed to be registered and programmes accredited.

The Chair suggested that perhaps the Department should present its regulations to the Committee.

Adv Malebye said that the Committee’s concerns were noted. She added that the Department was working on its vetting unit.

Clause 20
Bishop L Tolo (ANC) agreed with the provisions in the clause that allowed for female inmates to have their infants with them in prison until the age of two years. He was concerned about who would care for the infants when they reached the age of two. He suggested that a building could be constructed within the confines of a prison, which would allow mothers to be with their children. 

Mr Bloem asked why the age limit was reduced from five years to two years. He asked whether the Department was unable to bear the burden up until the age of five.

Mr N Fihla (ANC) stressed that welfare officers should monitor the welfare of children when they were no longer allowed to be with their incarcerated mothers.

Mr Morris stated that prison was an unnatural environment for a child and that when the child reached the age of two, perhaps the Children’s Courts could look into the matter.

The Chair said that it was necessary for the Department of Social Development to become involved.

Mr Kriek conceded that having a child with the mother in prison was difficult as facilities were lacking. He said that the point of departure was to get children out of prison as soon as possible.

Ms W Ngwenya (ANC) asked what the Department’s motivation was in reducing the age from five to two years.

Mr Kriek responded that research had shown that two years was a long enough period for a child to be kept in prison with its mother.

Ms Ngwenya stated that perhaps ubuntu needed to be brought from communities. She urged the Department of Social Development to get involved.

Mr Selfe stated that the interest of the child was paramount and that the Children’s Courts was perhaps the best option.

Bishop Tolo asked whether provision was made for assistance to mothers who had disabled kids.

The Chair noted that the debate on the issue had clearly been opened.

Clauses 24 and 25
The Chair referred to Clause 24(d) and asked why there was a need to change the term “solitary confinement” in the Act to “detention in a single cell” in the Bill.

Mr Selfe referred to Clause 24(f) and asked why no provision for review had been included. Review provisions had however been included in Clause 25(1).

Mr Morris referred to Clause 25(1) and said that as it stands it includes all single cell prisoners. It made no distinction between prisoners in ‘solitary’ and normal single cell prisoners. Normal single cell prisoners still enjoyed privileges whereas those in solitary did not.

Mr Paxton stated that perhaps the wording did not reflect the intention of the Department. The intention was for Clause 25(1) not to apply to normal detention in a single cell but rather the circumstances outlined in Clause 24(f).

Mr Fihla felt that solitary confinement should be termed differently than ‘detention in a single cell’. During solitary confinement privileges were taken away whereas in normal detention in a single cell privileges were still allowed.

Mr Paxton explained that there were two scenarios. The first being confinement in a single cell and the second being segregation in a single cell. The first scenario deprived a prisoner of privileges whereas in the second, privileges were allowed.

The Chair referred to Clause 24(b) and asked the Department what was meant by the provision that allowed for a hearing to be held informally without representation for the prisoner.

Mr Bloem said that the Department did not have to respond to the question that day but could provide an explanation later in the process.

Mr Vanara said that there was a need to stipulate which categories of prisoners did not need legal representation.

The Chair said that the issue would be flagged.

Clause 31
The Clause provided that an inmate may not be brought before the court whilst in mechanical restraints, unless authorised by the court.

Mr Selfe asked whether the courts or Correctional Services had insisted upon the provision. He was concerned that security at courts could be placed in jeopardy.

The Chair said that the issue would be debated.

Mr Morris referred to Clause 31(c), which required the reporting of all cases where mechanical restraints were to be used. He asked if the provision was practical as it covered both the use of leg-irons and handcuffs. This was especially a concern given that so many prisoners appeared in court on a daily basis.

Mr Paxton responded that only the use of mechanical restraints on solitary confinement prisoners needed to be reported.

The Chair stated that the issue would be debated.

Clause 32
The Chair suggested that provision should be made for the use of ‘minimum force’ in Clause 32(1)(a).

Mr Paxton stated that Clause 32(1)(b) did qualify the use of minimum force in Clause 32(1)(a).

Mr Bloem reacted that it would do no harm to make provision for it in Clause 32(1)(a).

Clause 35
Mr Vanara referred to Clause 35(b) and asked which Department was being referred to.

Adv Malebye responded that it was Correctional Services officials.

The Chair asked if persons working in the Minister’s Office would also qualify as Department workers.

The Chair asked the Department to improve the wording and it agreed to do this.

Clause 38
The Chair was concerned about the provision amending Section 40(1)(b) that stated that an offender should be provided with market related skills whilst in prison. He felt that the debate would be huge and flagged the provision.

Ms Ngwenya referred to the provision amending Section 40(5) which provided that an offender could not be compelled to work as a form of punishment or as a disciplinary measure. She said that inmates should be forced to work as many just lazed around.

Mr Kriek said that offenders could not be compelled to work as a form of punishment or as a disciplinary measure. Offenders were however required to do normal work duties. The issue of work was covered in Section 40(1)(a).

The Chair had concerns about the use of ‘may’ in Clause 38 and said that it should be flagged.

Clause 39
The Chair suggested that the use of “Department” be replaced with “National Commissioner” and the Department agreed.

Adv Malebye referred to Clause 39 amending Section 41(2) and said that it was the intention of the Department that adult offenders may be compelled to take part in educational programmes and that children must be compelled to participate.

Mr Selfe felt that offenders should be compelled to participate in educational programmes. He asked why offenders were given a choice.

Clause 40
The Chair referred to Clause 40(a) and asked why the period had been changed from 12 months to 24 months.

Mr Kriek responded that the Department felt a 12-month serving term was too short for a Case Management Team to work on a plan. The Department felt it better to concentrate on longer-term offenders. Hence the change from a 12-month to a 24-month qualifying period. 

The Chair flagged the issue.

Clause 41
The Chair referred to the provision amending Section 43(1) that provided that an offender ‘must’ be housed at a correctional centre closest to the place where he was to reside after his release. He noted that it was not always possible to fulfill the requirement given huge overcrowding problems. Mr Bloem also noted that in certain instances the nearest prison could not accommodate a specific type of offender.

Mr Kriek conceded that the word ‘must’ in the Clause was a mistake and that it should have been ’may’. The intention of the Department was to use ‘may’ which was in keeping with international standards. The Department agreed to correct the mistake.

Clause 43
The Chair referred to the use of ‘must’ in the provision amending Section 45(3) and suggested that it be changed to ‘may’.

Clause 47
Mr Paxton informed the Committee that the provision amending Section 52(1)(a)(Aa) was already contained in the principal act and that it should be deleted from the Bill.

Mr Selfe referred to Clause 47(a) and asked why the court no longer had a say over community corrections and the Minister now did. He also referred to Clause 47(f) and asked why the using of alcohol in prison was no longer an offence. The Bill provided that only the abusing of alcohol in prison was an offence. He asked at what point did the using of alcohol become the abusing of alcohol.

The Chair flagged the issue.

The rest of the Bill could not be completed due to time constraints. The meeting was adjourned. 

 

 

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