Correctional Services Amendment Bill [B32-2007]: deliberations

Correctional Services

10 September 2007
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Meeting report

 

 

 

 

 

 

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
11 September 2007
CORRECTIONAL SERVICES AMENDMENT BILL: DELIBERATIONS

Chairperson:
Mr D Bloem (ANC)

Documents handed out:
DCS and State Legal Services: consolidation of proposed amendments.
Correctional Services Amendment Bill [B32-2007]

Correctional Services Amendment Act

Audio recording of meeting

SUMMARY
In a lengthy meeting, the State Law Advisor led the Committee clause by clause through a consolidated list of amendments compiled from the Public Hearings and subsequent discussion pertaining to the proposed Amendment Bill. Many of the amendments related to correcting terminology and grammar, however there were substantial content changes, and these elicited discussion. The controversial topics were again the appointment of the CEO to the Judicial Inspectorate, the role players in formulating the incarceration framework, and deciding on parole for ‘lifers’. The Committee insisted that the CEO of the Judicial Inspectorate must be appointed by the Inspecting Judge, and not the National Commissioner, as the independence of this office was critical. Only one issue not covered was the role of the Inspecting Judge in investigating corruption. This would be carried over to the meeting of 14 September, where it was hoped the Bill would be adopted.

MINUTES
The Chairperson noted that the Department would present a clean Bill with all the changes incorporated and with the framework concerning parole worked out. He handed over immediately to the Correctional Services National Commissioner, Mr Vernie Petersen, and his delegation from the Department of Correctional Services (DCS).

The National Commissioner called on the State Law Adviser and the Departments legal drafters to report on the changes they had worked on.

Ms Bongiwe Lufundo, State Law Advisor, explained that they had prepared a list consolidating all the amendments, and she proceeded to read through the proposed amendments to the Correctional Services Amendment Bill clause by clause (see presentation). The Committee flagged concerns as they were encountered. Many of the amendments related to correcting terminology and grammar, and incorporating the inputs from the public hearings and subsequent deliberations. As such, they did not require elaboration or debate. However, the flagged clauses were as follows:

Clause 1 amending Section 1
The Chair asked what had been done concerning the original paragraph (g) on disability.

Ms Nadia Dollie, Parliamentary Researcher, pointed out that the South African Human Rights Commission had raised the issue, stating that the terminology used in describing disability was offensive. However, the Department had not dealt with this at the previous meeting.
 
Adv Millicent Malebye, DCS Legal and Special Operations, said that it was an omission by the Department, and they would change it.

Clause 25 amending Section 25
Mr J Selfe (DA) asked the Chair what the procedure was for the discussion, whether they were going to debate the merits of the amendments, or just hear the Department.

The Chair replied that they must stop and debate the document wherever necessary.

Mr Selfe asked for the thinking behind rejecting Clause 25 and retaining Section 25 of the principal Act.

Mr Carel Paxton, DCS Director of Code Enforcement, replied that they had removed ‘solitary confinement’, and it now fell under section 30 of the Act. This section contained methods to ensure that when offenders were segregated, the correct procedure was undertaken.

Adv Malebye added that the Department has previously explained the reasoning, and provided a copy of how they were going to effect the procedure.

Clause 32 amending Section 32
The Chair asked why his requested insertion of ‘minimum’ before ‘force’ had been omitted in 32(1)(a).

Adv Malebye apologised for this omission, and assured the meeting that all the omissions would be inserted.

Clause 39 amending Section 41
Ms Dollie reminded Ms Lufundo that they had requested that under Section 41(2)(a), ‘may’ would change to ‘must’.

Ms Lufundo noted the comment.

Clause 41 amending Section 43
The Chair noted the use of the words ‘must be housed’ in 43(1) and that they had debated the use of the word ‘must’.

Mr Paxton informed the Chair that they were following international practice by mandating housing as close as possible to where the offenders resided. However, although it said ‘must’, this was subject to some other variables as shown by the words ‘with due regard to…’

The Chair said that there had been court cases against the Department because of this wording.

Mr Erns Kriek, DCS Director: Pre-Release, informed the Chair that they had not lost any of the court cases in this regard. As it stood now it was correct, and it left the door open for the Department to take into consideration security, accommodation availability etc.

Clause 43 amending Section 45
Ms Dollie queried the Health Act referred to in Clause 43. At the public hearing it was noted that the Health Act No 63 of 1977 was an old act and the reference needed to be updated.

The point was noted by the Department.

Clause 47 amending Section 52
Mr Selfe asked if ‘the Minster’ should remain in 52(a).

Mr Paxton replied that ‘the Minister’ should not be there, and should be replaced by ‘the court’ as in the principal Act.

Mr Selfe then raised a concern about Section 52(f) noting that it was not in line with Clause 50, amending Section 57(5), that was being retained. He wanted to suggest that these two sections be aligned by adding a subsection 3 to Section 52 of the principal Act.

Adv Malebye said that they had discussed this matter with the State Law Adviser and, as it stood, it was in line with the intention of Section 57(5) which was to be retained in the principal Act.

Mr Selfe was satisfied.

Clause 52 amending Section 67
Mr N Vanara, Parliamentary Legal Adviser, asked if the use of ‘Commissioner’ should rather read ‘National Commissioner’.

Adv Malebye informed Mr Vanara that there was a stipulation in the Bill that any reference to ‘Commissioner’ implied the National Commissioner.

Clause 56 amending Section 73
Mr Vanara explained that the drafters wanted to amend paragraph (a) by substituting certain words, but the paragraph they had used was not as it appeared in the Act.

Ms Lufundo referred to Section 73(5)(a) in the principal Act and explained the original intention of the drafters and Mr Vanara was satisfied.

Mr Selfe asked for clarity concerning the proposed amendments, Numbered 12 to 28, under Clause 56 concerning the role players in the determination of parole.

Mr Kriek explained that as there were a mixed pack of sentences (e.g. those on parole, fined or sentenced) they had wanted space for the provision that those sentenced under section 276(1)(b) of the Criminal Procedure Act could not be put on parole.
 
Clause 57 amending Section 73A
The Chair enquired as to the role of the Parole Boards, as here there was only reference to the National Commissioner and the National Council.

Mr Paxton replied that here they were dealing with the incarceration framework that would be laid down. Once that was done, the Parole Board would take decisions from it.

Mr Kriek added that the Parole Board would most probably be consulted, but did not need to be in the legislation.
 
The Chair was satisfied.

Clause 62 amending Section 78
The Chair asked the Department for information concerning the powers of the Minister.

Ms Lufundo mentioned that they were dealing with the determination of parole for ‘lifers’, and asked whether they wished to reinstate the Minister.

Mr Paxton said that it was still the preference of the DCS to let the decision-making stay with the Minister, as in line with practice. The Department would like to see the phrasing as it was in the original amendment that moved the responsibility from the court to the Minister.

The Chair noted that this was a point for the Committee to discuss.

Mr N Fihla (ANC) contributed to the discussion and stated that, in view of the fact that the National Council was composed of experts, including judges, it seemed to him silly that a matter the Council had determined would then have to go back to another court. He stated that simply a referral to the Minister sufficed.

Mr Selfe said that they had established a certain principle in putting this matter to an expert body and would like to keep that precedent.

Mr Kriek stated that the Department had considered the National Council having the power, but as they only met four times a year, it would be problematic if there were, for example, a parole case that needed urgent attention. It was therefore clear that the best person in this matter was the Minister, with the advice of the National Council.

Ms Lufundo told the Committee that, as Section 78 of the principal Act dealt with the release of parolees, there was nothing wrong constitutionally with this wording.

Mr Vanara added that it was a policy decision on whether the Committee wanted these powers performed by a court or the Minister.

The Chair said that as the Minister was acting with the recommendations from the National Council in the context of the framework, he personally did not think that they were doing anything irresponsible. The Committee had already covered the ‘blank cheque’ scenario in Section 73(A) and closed any loophole where this power could be abused. He was satisfied that there were enough checks and balances.

Mr Kriek agreed that the Minister would be the best person in this position, due to the advice they would receive from the Parole Board.

Clause 63 amending Section 79
Ms Dollie pointed out a duplication in line 7 to 9, page 21 and said that the whole insertion should be deleted. Her point was accepted.

Clause 64 amending Section 80
Mr Vanara pointed out that 80(2) needed to be amended in line with the new text in Section 73(A).

This correction was agreed to.

New Clause 73
Ms Lufundo proposed a new Clause 73 that described the appointment and function of the CEO.

The Chair disagreed with the addition, stating that the opinion of the Committee was that the CEO must be appointed by the Inspecting Judge, and not the National Commissioner. He reiterated that the independence of this office was critical.

Mr Selfe added that there were cases where judges made appointments, and this would not be interfering in administrative roles on the part of the judiciary. Once appointed, all the administration work was the domain of the CEO.

Adv Malebye informed the Committee that they had left it as it was, as per the advice of the State Law Adviser.

The Chair stated that if they did not find an agreement on this, he would ask permission for the Committee to sit on 12 or 13 September so that this was completed on Friday. He asked the Department what the problem was with the Inspecting Judge appointing their CEO.

The National Commissioner, Mr Petersen, said that they agreed with the Chair, but were advised differently by the State Law Adviser who pointed out that the CEO’s employer was the DSC. The issue was how they could protect the judge from subsequent administrative involvement relating to employee problems.

The Chair said that if that was the case, then they should cancel the Office of the Inspecting Judge altogether, as it was then under the control of the National Commissioner and not independent.

The National Commissioner said that, when one looked at the principal Act, which provided for secondment of staff, this was already an improvement on independence.

Ms Lufundo explained her position by stating that she had made comparisons with other similar independent institutions and found that their CEOs were appointed by the Minister, who also determined their terms and conditions of employment.

Mr Selfe responded with the opinion that the entities that Ms Lufundo referred to were not the same as a Judicial Inspectorate, which needed to be independent in a special way. The Judicial Inspectorate could not be accountable to the Government, as its job was to inspect a Government institution. The question was still whether a judge could or could not appoint staff. He was persuaded that judges had appointed their own staff before, as with the Jali Commission, and that it was not unconstitutional.

The Chair repeated that they would have to disagree with the Department. They wanted the Inspecting Judge to appoint the CEO in consultation with the National Commissioner.

The National Commissioner said they were willing to go with the Chair, but were following the advice of Ms Lufundo.

Ms Lufundo then conceded her position, and rephrased the amendments (b) and (c) to reflect the wish of the Committee that the CEO was appointed by the Inspecting Judge, in consultation with the National Commissioner.

Clause 96 amending Section 134
Ms Dollie queried amendment 3 that inserted subsection (n) and paragraph (kkl). Concerning the regulations that the Minister was to submit to Parliament for approval, she wanted to know if that meant that all the regulations submitted would come to this Committee.

Mr Paxton mentioned that they should add ‘any draft regulations’ instead of ‘the draft regulation’, as it would cover subsequent amendments.

The National Commissioner, Mr Petersen pointed out that paragraph (kkl) only applied to regulations concerning the incarceration framework.

Ms Dollie was satisfied.

This ended Ms Lufundo’s presentation.

General Discussion
Mr Vanara took the Committee back to the new proposed amendment of Clause 57 on page 15 of the proposed amendments. The proposed text stipulates that, ‘The National Council must, in the prescribed manner…
determine minimum periods for which sentenced offenders must be incarcerated…’ He wanted to know what ‘the prescribed manner’ was as he could not find it anywhere. If it was referring to paragraph (kkl) proposed under Clause 96, then they still had some work to do.

Ms Lufundo informed Mr Vanara that ‘prescribed’ meant ‘prescribed by regulations’, though it was not spelled out.

Mr Vanara said that some method was needed to indicate that understanding.

Ms Lufundo replied that if it were not clear, then they needed to define it in the Bill. Traditionally ‘prescribed’ meant ‘prescribed by regulations’.

The Chair reminded the Committee that there was still one matter that was not covered, Clause 74 concerning the role of the Inspecting Judge. They had said that they wanted to see the Office empowered to report on corruption. At the 7 September meeting, the Department said that this was an omission, yet there was still nothing here. He asked the Department for an explanation.

Adv Malebye responded for the Department and said that the phrase ‘report on corrupt and dishonest practices’ had been retained as is in the principal Act, but they had not added the issue of investigation.

The Chair said that he could see everyone’s minds were tiring and they would come back to this matter on 14 September. The Committee would meet at 9 o’clock to conclude the matter.

The meeting adjourned.

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