Correctional Services Amendment Bill: deliberations
NCOP Security and Justice
21 November 2007
Meeting Summary
A summary of this committee meeting is not yet available.
Meeting report
SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE21 November 2007
CORRECTIONAL SERVICES AMENDMENT BILL: DELIBERATIONS
Chairperson: Kgoshi L Mokoena (ANC, Limpopo)
Documents handed out:
Correctional Services Amendment Bill [B 32B-2007]
Correctional Services Amendment Bill [B32-2007]
Proposed Select Committee Amendments to Correctional Services Amendment Bill as at this meeting
Proposed Select Committee Amendments to Correctional Services Amendment Bill as revised after this meeting
Presentation on Correctional Services Amendment Bill
Audio recording of meeting
SUMMARY
The Committee was given insight into the proposed amendments to the B version of the Bill which were mainly technical in nature. It was clarified that the Incarceration Framework drawn up by the National Council for Correctional Services in consultation with the National Commissioner would first be ratified by the Minister and then be approved by both Houses of Parliament. The Parole Board would consult this framework when deciding on parole for non-lifer incarceration prisoners. The Minister would make this decision for life incarceration prisoners and likewise consult the Framework.
Much discussion took place over the powers of the Minister regarding parole to lifers. The Minister was in terms of the proposed amendments once again given the power to make a decision on parole for lifers whereas it had previously been with the courts. The Minister would however not determine the period that was required to be served. The National Council would develop an incarceration framework that would set out periods that would have to be served before parole could be considered. The framework would serve as a guide in assisting the Minister to make a decision. The Bill could however not be finalized as the discussion on the proposed amendments was not completed and one of the proposed amendments had not yet been incorporated into the proposed amendments document.
MINUTES
Proposed Select Committee Amendments to Correctional Services Amendment Bill
The Department of Correctional Services (DCS) was represented by Advocate Millicent Malebye Deputy Commissioner: Legal and Special Operations, Mr Carel Paxton Director: Code Enforcement, Ms T Boikhulo Deputy Director: Social Support, Mr Erns Kriek Director: Prerelease and Mr Simpiwe Xako Media Liaison Officer: Deputy Minister’s Office. Ms Bongiwe Lufundo represented the State Law Adviser’s Office and the Parliamentary Legal Adviser was Mr Ntuthuzelo Vanara.
In reply to the Chair noting that the Committee had given the Department instructions to clear up certain clauses in the last meeting, Adv Malebye said that the State Law Advisers had carried out the task.
Ms Bongiwe Lufundo explained that certain omissions and proposed amendments had been effected to the Bill in accordance with the Committee’s requests. She noted that she would mainly elaborate on those proposed amendments which were considered to be important. The rest of the changes were of a more technical nature and not substantive:
Clause 55 amending Section 71
Ms Lufundo stated that an amendment had been proposed by the Department. It allowed for the Minister to make a decision on parole for lifers and no longer the courts. She noted that due to an oversight, reference to court had been retained in the B version of the Bill after the Portfolio Committee had dealt with the Bill. The formulation as it currently stood was the intention all along. The substance of the clause had remained the same.
Clause 56 amending Section 73
Ms Lufundo stated that currently in the Bill the Minister determined the minimum period for which a person had to be incarcerated before being considered for correctional supervision. She noted that the intention of the Portfolio Committee and the Department had been that the National Council for Correctional Services and not the Minister should determine the minimum periods of incarceration in terms of an incarceration framework. The framework, once devised by the National Council for Correctional Services, would have to be referred to Parliament for approval. Ms Lufundo pointed out that the new formulation as amended was not in the current proposed amendments document. She proceeded to read it out to the Committee. A document including this proposed amendment would be forwarded to the Committee in due course.
Ms Malebye stated that as the Bill stood, the Minister had to develop regulations that the National Council was obliged to follow in terms of an incarceration framework. This was not the intention. The National Council had to determine the Incarceration Framework.
Clause 94
Ms Lufundo said that subclause (n) had been removed from the bill. The intention was that the Minister should not guide the National Council on the Incarceration Framework.
Clause 1
Ms Lufundo pointed out that in Clause 1 the definitions of “disability” and “mechanical restraints” had been amended.
The Chair was not convinced that the definition of “mechanical restraints” was what it ought to be.
Mr Vanara supported the amendment for the National Council to determine the Incarceration Framework. Previously legislation had set the minimum periods of incarceration. The Department had experienced problems and hence the proposed amendment. Parliament still reserved a measure of control in that the framework needed to be considered by Parliament before it took effect. However he asked when the Incarceration Framework was to be ratified by the Minister. Was this before or after it was referred to Parliament? Mr Vanara suggested that the Incarceration Framework be ratified by the Minister before being referred to Parliament.
Adv Malebye confirmed that the Incarceration Framework would be ratified by the Minister before it was sent to Parliament.
Mr Vanara referred to the amendment to Clause 55 that provided for the Minister to decide on parole for lifers and asked what was going to guide the decision by the Minister. He noted that previously the courts had been involved.
Adv Malebye responded that the Minister would be guided by the Incarceration Framework.
Ms Lufundo said that the new formulation to be forwarded to the Committee would shed light on the matter. She said that the National Council decided on the periods and not the Minister. The framework would guide the Minister in making a decision.
Adv Malebye suggested that perhaps a reference to Section 73A should be inserted in Clause 55 to shed light on the fact that the Minister would be guided by the Incarceration Framework.
Mr Vanara agreed with Adv Malebye’s suggestion.
Adv Malebye said that the Minister would not determine the periods to be served. The Minister only needed to make a decision on whether to grant parole or not. The Incarceration Framework would guide the Minister’s decision.
Mr Paxton read out the provisions of Section 73A. He explained that there were two entities deciding on parole. There was the Parole Board for non-lifers and the Minister for lifers. Previously the Act had set specific periods to be served before consideration for parole. With the proposed amendment, the Incarceration Framework would now set out the periods to be served. The Minister would be guided by the Framework.
Ms Lufundo said that firstly the periods would be determined by the National Council in terms of the Incarceration Framework. For non-lifers, the Parole Board decided on parole. For lifers, the Minister would make a decision guided by the Incarceration Framework. The National Council determined the periods in terms of Section 73A.
Ms Lufundo did not agree with Adv Malebye and Mr Vanara that the Minister must make a decision in contemplation of Section 73A. She said that there was no link between the decision by the Minister and Section 73A. Ms Lufundo suggested that the clause remain as amended.
Mr Vanara said that he would meet with the Department and the State Law Advisers after the meeting to sort out the matter.
Discussion
Mr J Le Roux (DA, EC) referred to the appointment of the Judicial Inspectorate’s Chief Executive Officer in Clause 70. He felt that the Inspecting Judge should make the appointment and not the National Commissioner. The position of the Inspecting Judge should not be weakened.
Ms Lufundo said that the Inspecting Judge did make the selection.
Mr D Worth (DA, FS) asked if there would be a “C” version of the Bill given the further amendments to be included in it.
Ms Lufundo said that the proposed amendments would be referred back to the Portfolio Committee for consideration. There would therefore not be a “C” version of the Bill until the Portfolio Committee had approved the proposed amendments as well.
Mr F Cele (ANC) felt it good that the Incarceration Framework should come back to Parliament for approval. He asked why the Minister must first ratify the framework before it came to Parliament for consideration. He was not comfortable with the language usage in the Bill. He felt that the language of the Bill should flow better.
Mr Cele said that mention was made in the Bill about alcohol abuse by inmates but asked about alcohol abuse by officials.
Ms Lufundo said that the Minister would ratify the framework after the National Council had completed it. Parliament was free to make changes to the framework subject to ratification by the Minister.
Mr Mokoena said that it looked like the Committee would not be finalizing the Bill in the present meeting.
The Chair asked whether the amendment to Clause 55(b) dealing with the role of the Minister was canvassed by the Portfolio Committee or was it a new proposal by the Department.
Mr Paxton responded that the clause had been debated by the Portfolio Committee and that it was not a new proposal by the Department.
Mr Le Roux said he was under the impression that the Portfolio Committee had wanted the courts and not the Minister to make the decision regarding parole for lifers.
Mr Paxton said that the issue had been greatly debated. He explained that after 2004 when prisoners were sentenced to life, they had to serve twenty years before there was the possibility of parole. The amendment made it now possible for the Minister to decide on the possibility of parole for lifers on recommendation by the National Council. The Portfolio Committee had decided to revert back to how it had been prior to 2004 where the Minister made the decision.
Mr Cele said that the Committee should take its time with the Bill. Mr Le Roux felt the same way, saying there was no need to rush the Bill.
The Chair said that the Committee agreed on this.
Mr Cele felt that the Department’s communication of issues was poor. It needed to be jacked up. He believed that parole issues should lie with Correctional Services.
Mr Varana said that in the current version of the Bill, the Incarceration Framework was supposed to come back to Parliament in the form of regulations. This was set out in Clause 94(n). The proposed amendments now called for the deletion of (n). He asked how the Incarceration Framework was to be introduced to Parliament if not in the form of regulations. The explanation given for this was that the Incarceration Framework could not be introduced into Parliament in the form of regulations because it had been developed by the National Council and not the Minister. He pointed out that the Minister however had the final say as it was still required to be ratified.
Ms Lufundo said that the Minister had to ratify the Incarceration Framework. The periods were determined by the National Council and not the Minister. She pointed out that the Incarceration Framework would be published in the Government Gazette and would not form part of regulations.
The Chair said that further engagement was needed.
Mr Mokoena referred to Clause 20 and asked why there had been a decrease in age of children allowed to stay with mothers in jail. The age had been decreased from five to two years.
Adv Malebye replied that it was done in the best interests of the development of the child. Ms Boikhulo added that research had shown that the prison environment was not conducive for the development of children. By the age of two sufficient bonding had already taken place between mother and child. The child was thus old enough to be cared for by someone else outside of prison.
The Chair hoped that all the amendments would be contained in document form by the time the Committee next met.
The meeting was adjourned.