Correctional Services Amendment Bill [B32-2007]: Department response to submissions

Correctional Services

08 September 2007
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Meeting report

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
07 September 2007
CORRECTIONAL SERVICES AMENDMENT BILL: DEPARTMENT RESPONSE TO SUBMISSIONS

Chairperson:
Mr D Bloem (ANC)

Documents handed out:
Department of Correctional Services response to public submissions

Correctional Services Amendment Bill [B32-2007]

Audio recording of meeting

SUMMARY
The task before the Portfolio Committee was to consider the inputs of the Public Hearings of the Correctional Services Amendment Bill held on 4 September. The Department of Correctional Services started the meeting by reading, clause by clause, the public’s suggestions, and their own responses to these proposals. This was followed by input from the State Law Adviser and the Parliamentary Law Adviser, before the Committee debated the various suggestions. The discussion focussed primarily on the provisions concerning parole, and the job description of the Inspecting Judge concerning corruption. It was agreed that the determination of parole periods must instead be moved to the Courts and not the Minister. However, the persons responsible for the granting of parole were now the Minister (with the Parole Board), and not the Court. Due to the many proposed amendments, it was decided that the Department, with the State Law Advisor, draw up a clean bill with fresh provisions concerning the Minister’s role in deciding the parole date of inmates. The Committee would review this on 11 September.
 
MINUTES

The Chairperson welcomed the Correctional Services National Commissioner, Mr Vernie Petersen, and his delegation from the DCS. Mr Bloem noted that the purpose of the meeting was to discuss the input of the eight organisations at the public hearing. He handed over to the Department of Correctional Services to present their response to submissions.

Mr Petersen, National Commissioner, DCS thanked the Committee for the work they were doing, and handed over to his delegation.

DCS response to the public submissions
Advocate Millicent Malebye, Legal and Special Operations: DCS, presented the Department’s response document showing the public comments pertaining to the Bill clause by clause, as well as the Department’s responses. Adv Malebye read through the proposals and responses from Clause 1 to Clause 38 whereupon she handed over to Mr Paxton.

Mr Carel Paxton, Director of Code Enforcement, DCS, continued to read through the document. He read from Clause 39 until the end of the Bill (Clause 97). Public input was noted, agreed with, or rejected, and the various reasons stated in the presentation.

Discussion
The Chair thanked the Department for their work, noting that he was very happy with what had been done. He called for the State Legal Advisor to comment.

Ms Bongiwe Lufundo, State Legal Advisor, had one comment about the Department’s document concerning
Clauses 69 to 76 where the DCS proposed that the CEO of the Office of the Inspecting Judge “will be appointed by the Inspecting Judge in consultation with the National Commissioner and the Director-General of the Department of Public Service and Administration.” In the light of the Heath case, Ms Lufundo did not want interference by the judiciary within administration, and proposed that the National Commissioner appoint the CEO, upon recommendation of the Inspecting Judge.

Adv Malebye, DCS, responded that Department had noted Ms Lufundo’s point on the independence of the Office of the Inspecting Judge. The DCS was of same view that the appointment of the CEO by the Inspecting Judge moved the Judge from his/her job into administration.

The Chair called the Parliamentary Legal Advisor to comment.

Mr N Vanara, Parliamentary Legal Adviser, focussed his comments on the Department’s suggestions surrounding
Clauses 56 and 57. In his mind, the Department’s desire to regulate the parole system more effectively could be seen by Parliament as problematic. The Department had its reasons for the request as the current system was rigid and gave illegitimate expectations to inmates. The DCS did not have legislative powers, but had now approached the Committee to ask if these legislative powers concerning parole could be delegated to the Minister.
 
Mr Vanara wondered if it would be constitutionally in order for the legislature to delegate this legislative power to the Minister. Although there were cases where it had been done in the past, the question was how the Department would choose to implement these powers. The courts had warned that legislature could not issue a blank cheque. Section 73(A) proposed that the Minister will take into account the incarceration framework, but his advice was to tighten these regulations up. Mr Vanara ventured a possibility that once the Minister had determined the parole term, he would have to have his decision ratified by the Committee.

Mr Vanara also commented about the continuity of healthcare to inmates being released. To ensure successful reintegration of offenders, specifically concerning ARV treatment, it was imperative to add this dimension of healthcare to the Bill to enable this reintegration.

With respect to the Judicial Inspectorate, Mr Vanara had heard what the State Legal Advisor had said. He added that one had to be realistic, as within this specific Department there was corruption. The Jali Commission made serious and profound recommendations in that regard, and if the Committee was serious about fighting corruption, those recommendations needed to be shown in the Bill. It would be a disappointment if they were overlooked.

Adv Malebye, DCS, commented on the lack of the Jali Commission’s recommendations in the Bill and stated that it was an omission, and the Department wanted to apologise for not reflecting the recommendations in the Bill. She said further that the Inspecting Judge’s role in the Act was clear, and, whether legislated or not, everyone was obliged to report corruption. She felt conferring the Office with the additional duty of investigating corruption to be incorrect and that it would interfere with the independence of the Office.

 

Mr Navara said that all departments should be held accountable for the reporting function and questioned if the Office of the Inspecting Judge had the capacity to incorporate corruption reporting and investigation duties.

Discussion ensued between the Chair, Mr Vanara, and the National Commissioner surrounding the responsibilities of the Inspecting Judge toward reporting or investigating corruption.

 
Mr Vanara brought the discussion to a close by agreeing with the National Commissioner that there had been an omission in this regard, and that the DCS and legal advisors would look at the matter to see how the Jali Commission’s recommendations could be incorporated into the Bill.

Mr Paxton (DCS) brought up the next issue of deliberation, reminding the meeting of the two options concerning the determination of parole that Mr Vanara had outlined. The Committee could either delegate the role to the Minister as a ‘blank cheque’, or regulate it.

The National Commissioner, Mr Petersen, preferred the option of the Minister having to come back to the Committee with the decision concerning parole. Current practice dictated that there was a dilemma, and he supported a framework that gave the Minister power, yet had to be ratified by the Committee.

The Chair turned the attention to the Department response to submissions on Clauses 56 and 57 [page 16 of the response document]. The Department had noted that
“Section 73A will also be altered to provide that the incarceration framework be consulted by the NCCS with the National Commissioner where after it will be ratified by the Minister and published by notice in the Government Gazette.” Mr Bloem agreed with Mr Vanara that they could not give a blank cheque, but there were already some guidelines with the inclusion of the National Council on Corrections, and its broad composition. In his mind, the NCCS was a credible body.

The National Commissioner, Mr Petersen, replied that, even if it were a credible body, changing the power from the Minister to the NCCS still did not address the dilemma. The NCCS could play a key role in developing the parole framework, but it needed broader finalisation. For him, it was not about credibility, as the Council members were still there representing themselves, and as such did not solve the need for wider consulting. Balance was needed, and if they wanted to bring this into primary legislation, then his preference was that the clause would state that the decision was made according to the framework that was to be developed.

Mr Vanara mentioned that Mr Petersen had captured it very well. If the Bill was to be passed as it were, there would not be the space to look at the incarceration framework. Mr Petersen’s suggestion gave the Committee the opportunity to deliberate the framework better.

The National Commissioner, Mr Petersen, tried to ascertain the timeframe of the Committee for this specific legislation. If there was time to consult, they could go back and look at the practicalities thereof and see if it could be achieved before the Bill was passed. If this was not possible, the Department could ask for provision to be built into the Bill that mandated them to develop the framework. The Bill could read ‘the Minster shall consult subordinate legislation with regards to determining parole.’

Mr Vanara asked to consult with the chair.
 
Mr Paxton, DCS, noted the fact that if the way forward was to refer to the incarceration framework in this legislation, then the status quo would remain operational until the new regulations were created and came into place.

Adv Malebye, DCS, agreed with the suggested amendment, but added that it would only be the one clause that was outstanding, as they did not want regulations for the entire Bill, just clause 73(A).

Ms Lufundo repeated the decision for clarity, saying that Clause 73 would be amended to create space for the Minister, in consultation with Parliament, to make regulations pertaining to the minimum parole periods.

Mr Vanara confirmed Ms Lufundo’s statement, adding that it was very important that the regulations came to this Committee for approval first.

The Chair said that this issue would be left for now, as further topics had to be discussed.

Ms W Ngwenya (ANC) asked about Clause 47 pertaining to the prohibition upon parolees to consume alcohol. She wondered how this law would be monitored or enforced.

Mr Erns Kriek, Director: Pre-Release, DCS, informed Ms Ngwenya that the requirements surrounding alcohol depended on the condition of parole. Some people were prohibited from consuming alcohol during parole, and others were not, yet they had to be sober when visited by the parole officer.

Bishop Tolo (ANC) repeated the point he had raised the previous week about this Bill being silent about corruption. He referred to the incident in 2002 at the Empangeni prison where warders helped 22 prisoners to escape, and wondered why the Department was still silent about that matter.
 
The National Commissioner, Mr Petersen, agreed with the Bishop, and thanked him for raising the issue. He said that they needed to make sure that there were consequences for all criminal behaviour, corruption or otherwise. He was disturbed that the only consequences seen were dismissals. He was working to make it a priority within the Cluster.

Inkosi B Biyela (DA) asked for clarity concerning the difference between the terminology ‘solitary confinement’ and ‘detention in a single cell.’

Mr Paxton, DCS, replied that both terms implied the same thing, namely segregation. He said that the term ‘solitary confinement’ should be done away with.

Mr Paxton pointed out to the Committee that the incarceration framework had been dealt with and would be written, and the Minister would ratify it instead of the court. However, with regard to ‘lifers’ there was still some fine-tuning to be done. Until that time they would revert to the proposal prior to the 1998 Act where the Parole Board’s decision went to the NCCS and finally to the Minister.
 
The Committee tried to iron out these varying readings. The Chair, the National Commissioner, Mr Paxton, Mr Vanara and Mr Kriek all proposed solutions and sought clarity.

Finally, both the Chair and the National Commissioner stated that, with all the proposals and amendments, it was too confusing, and a clean Bill, with all the amendments in it, was needed.

The Chair proposed that they meet on 11 September with a clean Bill from which to debate.

Ms Lufundo mentioned that there were two issues at hand that needed to be separated. The determination of parole period had now been moved to the Courts and not the Minister. Secondly, the persons responsible for the granting of parole (with the Parole Board) were now the Minister, and not the Court.

The National Commissioner, Mr Petersen, mentioned that this topic was difficult to talk about because there were different parole legislations for pre-1994 convictions. He asked that they let the legal persons present consult and come back on 11 September.

Mr Vanara agreed that they should look at the new suggestions and the effect they would have.

The Chair agreed and posed a final question concerning the lack of a sentence plan for persons convicted for less than 24 months. He asked how, since the Bill stipulated that offenders must be prepared for release and reintegration, that would be possible without a sentence plan.

Both the National Commissioner and Mr Paxton informed Mr Bloem that it was standard procedure that all inmates went through a pre-release programme, even those under 24 months and without a sentence plan.

The Chair reminded all that they would return on 11 September with a clean Bill to clarify the issues surrounding the role of the Minister with parole, and the responsibility of the Inspecting Judge concerning reporting fraud and corruption.

The meeting adjourned.

 

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