Correctional Services Amendment Bill [B32-2007]: adoption

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
14 September 2007
CORRECTIONAL SERVICES AMENDMENT BILL: ADOPTION

Chairperson: Mr D Bloem (ANC)

Documents handed out:
Department of Correctional Services (DCS): consolidation of proposed amendments

Relevant Documents:
Correctional Services Amendment Bill [B32-2007]
Correctional Services Amendment Bill [B 32A-2007] Portfolio Committee amendments
Correctional Services Amendment Bill [B 32B-2007] Committee amendments incorporated into Bill
Correctional Services Amendment Act

Audio recording of meeting

SUMMARY
In the final meeting dealing with this Bill, the State Law Advisor and the Department Legal Drafter led the Committee clause by clause through the consolidated list of proposed amendments to the Bill.

Deliberation ensued on the proposals for the appointment of the CEO of the Office of the Inspecting Judge. The Committee wanted the CEO to be appointed by the Inspecting Judge so that this institution remain independent from the Department. This had been agreed upon at the 11 September meeting. However the Department came to this meeting with a different provision as the Department felt that a judge should not be involved with administration. Eventually consensus was reached with the following provision:
“The National Commissioner must, on the recommendation of the Inspecting Judge, and in consultation with the Director-General of the Department of Public Service and Administration, appoint a suitably qualified and experienced person as Chief Executive Officer”. The Chair proposed two additional amendments, and then the whole Bill was unanimously adopted with amendments.

MINUTES
The Chairperson hoped that all the members were in possession of the latest consolidated list of proposed amendments and he called on the State Law Adviser to take them through the proposed amendments.

Ms Bongiwe Lufundo, State Law Advisor began taking the Committee through the final list of proposed amendments At times Ms Lufundo asked the Department to explain the additions and changes. Working together, Ms Lufundo, and Adv Millicent Malebye, DCS Legal and Special Operations, went through the document from Clause 1 to the end, Clause 99. The only discussion that occurred concerned the New Clause 72, and two new changes that the Chair proposed.

New Clause (Clause 72)
The provision now began as follows:

88A. (1) The National Commissioner must, in consultation with the Inspecting Judge and the Director-General of the Department of Public Service and Administration, appoint a suitably qualified and experienced person as Chief Executive Officer

Mr Bloem pointed out that the DCS had changed their mind about the appointment procedure of the CEO subsequent to the agreement they had reached with the Committee at the 11 September meeting. This concerned him, and he asked the Department to account for the change that they had made to the proposal.

The National Commissioner, Mr Vernie Petersen, explained that, upon reflection and further consultation after the Committee’s proposal was agreed to on 11 September, they realised that their concern was once again one of case law and needing to project the integrity of the judge. His Department had hoped that there might be a way of circumventing that problem without compromising the decision of the 11 September meeting. The Department had looked at various options, and noted that the primary concern of the Committee was the independence of the Office of the Inspecting Judge. Mr Petersen admitted that they were in a bit of a dilemma, for if the clause was withdrawn in its entirety, it would not enable them to improve the status of the Office. He therefore requested that the matter be revisited by the Committee in order to get guidance on it.

Mr Bloem reminded the Commissioner that, although they would allow it to be debated again, the independence of the Office was crucial to the Committee and would not be compromised.

Mr Petersen thanked the Chair for the concession to re-open the matter. He stated that their concern was that they were dealing with a judge, and the worries about judges getting involved in administration functions. His Department had looked at various formulations concerning the appointment of the CEO. One alternative was to say that the Inspecting Judge must, in consultation with the National Commissioner and the Director General appoint the CEO, but that still placed the administration in the hands of the Judge. So, the DCS’s suggestion to the Committee was that the procedure read as follows: “The National Commissioner must, “in concurrence with” the Inspecting Judge and the Director-General…” With this phrasing the Inspecting Judge had the last word, but the National Commissioner as the Accounting Officer had the role of administration. Mr Petersen also noted that for him the ideal solution would be that the Office would be independently constituted, legislated and funded, as the Independent Complaints Directorate is for the Police, though this was not possible at this time.

Mr N Vanara, Parliamentary Legal Adviser, said that they should not look at the proposed Section 88A in isolation. He drew the attention of the Committee to Section 89 of the principal Act, where they would see what the full intention of the Department was.

Mr Bloem read from the current Section 89, Subsection 4 and 5, in the principal Act:

Inspectors and staff

89. ( 1 ) The staff complement of the Judicial Inspectorate must be determined by the

Inspecting Judge in consultation with the Commissioner.

(2) The Inspecting Judge must appoint within this complement inspectors and such

other staff, including a secretary as are required.

(3) Such employees. if not correctional officials are deemed for administrative

purposes to be correctional officials seconded to the Judicial lnspectorate. but are under

the control and authority of the Inspecting Judge.

(4) The salary and conditions of service of any such employee must be determined by

the Inspecting Judge in accordance with the Public Service Act and after consultation

with the Director-General of the Department of Public Service and Administration.

Mr Vanara asked the DCS what the problems with the current legislation was.

Mr Petersen mentioned that, from a practical point of view, there were a number of amendments they were seeking which would rationalise the Office of the Inspecting Judge, and further its independence.

Adv Malebye amplified the answer of the National Commissioner and showed how they were trying to remove the functions of administration and finances from the Inspecting Judge. Although the existing Section 89(4) allows for the Inspecting Judge to delegate the powers, even if they are delegated, the powers and financial management duties are still finally that of the judge.

Mr Bloem took Mr Vanara’s question further and asked what was wrong with the whole structure at present, a system which had been in practice for nine years.

Mr Petersen stated that what was essentially wrong was that when the legislation was initially enacted, there was not a Constitutional Court ruling concerning the roles of judges with respect to administration.

Ms Lufundo agreed with the motivation of the Department and added that the idea to create a CEO position came from the Senior State Law Adviser as a means to free the judge from administration and bring the office in line with the Constitutional Court ruling.

Mr Vanara liked the answer of the National Commissioner, and his referral to the Constitutional Court’s decision. To understand how the Heath judgment impacted the current discussion, Mr Vanara led the Committee through a detailed outline of the reasons for the case, the role players in it, and its outcome. This information helped to show the concerns of the Department relating to judges and administration, as the main bone of contention in the Heath case was the separation of powers. However, although the ruling said that the existence of the separation of powers needed to be accepted, there would also be instances where judges would be required to perform executive roles. Each case needed to be decided on its own merits, and in this instance the Committee should look at this Judicial Inspectorate and say how they wanted it to operate.

The National Commissioner thanked Mr Vanara for the enlightening contribution and said that he found in Mr Vanara’s thoughts plenty of congruence with what the Department had presented. Mr Petersen highlighted that each case was to be determined on its merit, and he saw some fundamental differences between an independent commission of enquiry, and an institution whose budget comes from within a Department, such as the Judicial Inspectorate. As an Accounting Officer, he has a job to do with respect to the Office of the Inspecting Judge, which is run on voted, public funds.

Ms Lufundo added to Mr Vanara’s words of explanation concerning the Heath case. The crux of that case was the appointment of a judge who was in active service to a separate body.

Mr Vanara said that the fear was that the legislation they decided upon would not pass through constitutional scrutiny and the ideal would have been for the Judicial Inspectorate not to be headed by a judge.

Mr Petersen was fascinated that the discussion seemed to be coming full circle. He was worried that if the judge was found to have mismanaged funds, how he, as the National Commissioner, would be able to check that the public accounts were used properly, according to the Public Finance Management Act.

Adv Malebye noted that if the judge were to mismanage funds then discipline would be enacted by the National Commissioner.

Mr Vanara made clear that he had rested his case, and it was up to the Committee to decide further.

Mr Bloem called for contributions from the Committee.

Mr N Fihla (ANC) wanted to know the difference between ‘in concurrence’ instead of ‘in consultation’.

Ms L Chikunga (ANC) thought that the Office needed a separate budget. She was in favour of the Inspecting Judge appointing the CEO, who was then accountable to the National Commissioner for funds received.

Adv Malebye wished to reiterate that, although they had said that in the case of financial mismanagement, the National Commissioner would discipline the CEO, it would be difficult for the National Commissioner to discipline someone they did not appoint.

Ms W Ngwenya (ANC) mentioned that, in her mind, the problem was that the budget for the Office came from the Department

Mr S Mahote (ANC) agreed with the National Commissioner that they had come full circle. He understood that the appointment of the CEO could not lie on the shoulders of the judge alone, and that it should be done in consultation with the National Commissioner.

Bishop L Tolo (ANC) was confused as, after a lot of debate, they had seemed to have reached an agreement at the 11 September meeting, and yet now the whole issue had been started again.

Mr Petersen noted that, when it came to the issue of discipline, if the judge were to appoint the CEO, then the National Commissioner could only refer back to the judge for disciplinary action. Mr Petersen was desperate to find a solution and proposed that the judge and the National Commissioner together appoint the CEO. This would put the judge first, though allow the National Commissioner to take action with regard to discipline.

Mr Vanara pointed out that the only problem was with the words ‘in concurrence’. He asked what would happen if the judge and the National Commissioner differed in their choice, if there was no concurrence.

To close the matter, Mr Bloem finally proposed that the Inspecting Judge identifies and recommends a suitable person to the National Commissioner, who then appoints that person and handles all the administration surrounding the appointment.

This proposal was found satisfactory by all, and was agreed upon.

Ms Lufundo read the new text of the amendment, to be inserted in the principal Act after section 88, as a new Section 88A(1):

“The National Commissioner must, on the recommendation of the Inspecting Judge, and in consultation with the Director-General of the Department of Public Service and Administration, appoint a suitably qualified and experienced person as Chief Executive Officer…”

Clause 74
Mr Bloem said that he had a proposal dealing with Section 90(4)(b) of the principal Act. This should be amended to stipulate that the reports of the Inspecting Judge that were sent to the Minister, must also be forwarded to the respective Portfolio Committee.

This was agreed and the State Law Adviser undertook to insert this new amendment proposal.

New Clause (Clause 67)
Mr Bloem also spoke to Section 83 of the principal Act that outlined the composition of the National Council. Paragraph (h) required four or more persons appointed as representatives of the public. He proposed that the number be reduced to two, and that an additional paragraph (i) be added requiring two Members of Parliament to be on the National Council and representatives of the public.

Mr Vanara pointed out that the current legislation made it optional for Members to be part of the four persons, and with this change it enforced their presence.

This was agreed and the State Law Adviser undertook to to insert this new amendment proposal.

Voting on Bill
Upon completion of the reading of all the amendments, Mr Bloem announced that it was time to adopt and finalise the Bill. There were eight members of the Committee present, and that constituted a quorum.

Mr Bloem went through each of the proposed amendments which were agreed to by the Committee. He then put the Bill and all the amendments before the Committee. Mr Fihla proposed the adoption of the Bill with amendments. It was seconded and agreed.

Mr Petersen, on behalf of Minister Balfour and his team, expressed his extreme gratitude for the work of the Committee, the Chairperson and his own Department.

Mr Bloem also expressed his thanks to all present - his Committee, the Department, the press and the public for their dedicated involvement in this matter. He said that this was a great achievement to have finalised matters and it would strengthen the existing Act, and the Department.

Meeting adjourned.