Correctional Services Amendment Bill: adoption

Meeting report

Correctional Services Amendment Bill: Deliberations
NOTE: Due to a change in venue, the PMG Monitors missed the first part of the meeting.

Clause 59
The Committee debated the wording of Clause 59.

The Chairperson pointed out that the original Act referred to “four or more persons, not in the full time service of the State, or members of Parliament appointed as representatives, after consultation with the Portfolio Committee on Correctional Services. He pointed out that if the Committee was appointing two people from outside, the Committee must recommend them.

Ms S Seaton (IFP) felt that this was somewhat different from what had been proposed. She suggested that the amendment should make it clear that the recommendations must come from the Portfolio Committee, so that the Minister would have no say in the appointments, which were to be the decision of the Committee.

The Chairperson indicated that this was already covered in the reference to ‘appointed as representatives of the public’. The Members of the Committee were appointed as representatives of the public, so he felt that this was sufficient.

Ms Seaton did not agree and the Chairperson asked for comment from the legal advisors.

Ms Bongiwe Lufundo, State Law Advisor, Office of the Chief State Law Adviser, noted that appointments must be made in consultation with the Parliamentary Committees.

Mr Ntuthuzelo Vanara, Parliamentary Legal Advisor, highlighted the potential challenge of that particular provision. In the current Act, it was optional for the Minister to appoint, with the consultation of the Portfolio Committee, members of the committee to serve on the National Councils. The amendment made it now obligatory for the Minister to appoint members of this committee. He pointed out that there had been a recent amendment, so that this National Council would now come up with an incarceration framework to determine the minimum period that offenders need to serve in custody before they could be considered for parole. The effect of that was that members would then have to advise the Minister, amongst other matters, around policy issues of the Executive, and subsequently those policies would have to be overseen by the same committee. In other words, the same members would be participating in both the formulation and approval  f the incarceration framework. This was seen to be a potential source of constitutional challenge. For this reason, there had been an amendment proposed, that would cut out this potential for conflict and thus render the provision not liable to challenge by inmates. The piece of legislation was good and it would be a pity to have it challenged on the technicality of interference by the Executive. Members of the Committee must therefore decide on the issue.

The proposed amendment was then read out. Subclause 59(h) would then read “four or more persons, not in the full time service of the State, appointed as representative of the public after consultation with the relevant Parliamentary Committees”.

Mr J Selfe (DA) understood that it was proposed to go back to the original formulation of four people not in the employ of the State, appointed after consultation with this Committee. He pointed out that when this clause was originally discussed, Members were concerned that they should have more power over what went on in the National Council on Corrections. While he accepted that it was inappropriate for Members of Parliament to serve on that committee, he argued that the amendment was now falling short of what the Members had wanted in the first place. To say “after consultation” meant that the Minister could merely advise of his or her intention to appoint four people, who could be named without the Portfolio Committee necessarily having been consulted prior to their naming. Perhaps the committee being referred to in this clause needed to have four persons, who were not in the full time employ of the State, who were either appointed by, or approved by, this Portfolio Committee. This was different to “after consultation”. He would like to have a debate on what Members were trying to achieve. 

Ms Seaton fully supported these remarks. She would prefer the appointments to be made by the Parliamentary Portfolio Committee, but if this was not agreed to, then she would be happy to compromise on appointments approved by this Committee. She felt that there was a need for more authority. She suggested that the clause refer to two persons, appointed by the Portfolio Committee. They should not be Members of Parliament, although they could be former Members, who would understand the proceedings and be able to serve in confidence.

The Chairperson emphasised that the Act was referring to four persons not in the full time employ or service of the State or Members of Parliament appointed as representatives of the Republic, after consultation with the portfolio committee. He understood that the Minister could not appoint those four people without coming to the Portfolio Committee and believed that already the Committee could make recommendations and give the Minister four names.

The Law Advisers noted that Members were expressing the views that they wanted to be specifically involved and suggested that perhaps the wording could be to the effect that the four people would be appointed on the recommendation of Parliament.

Mr Vanara clarified the “after consultation” and the “in consultation”: principle. “After consultation” would mean that the Minister would say that he had appointed X and Y to the National Council, and therefore his “consultation” would be advising that the situation existed already. Here, the Members would not have much say regarding the appointment. If the Committee wanted to have a voice in the appointment of those people it would either have to be stated as “in consultation between the Committee and the Minister”, or, to be more effective, “with the approval of the Committee”.

Mr Selfe suggested substituting the words ‘after consultation’ with ‘in consultation’, to ensure that the appointment would involve both the Minister and the Portfolio Committee.

The Members agreed to this suggestion.

The Legal Advisers noted this, but stated that the wording still needed further attention. The words “not in the full time service of the State or members of Parliament” were linking together both the persons not in service and the Members. Perhaps there needed to be a clearer distinction. It was suggested that the punctuation needed to be looked at.

 The Chairperson asked the legal advisers to draft this clause with attention to the punctuation, so that the Committee could make a decision later.

Ms Seaton cautioned that she did not have before her the version that now contained all the amendments proposed so far. Nothing must be left out. She pointed out that in the past there had been some problems with the Committee insertions not being included and the Bill having been passed in a format that was not quite correct. She would like to avoid this.

The Chairperson explained to the legal advisers that the Committee was dealing with that clause because concerns had been raised about the constitutionality.

Mr Selfe added that if it was accepted that Members of Parliament being permitted to serve on this committee could give rise to Constitutional challenge, then the words “or members of Parliament” must surely be deleted.

The Chairperson agreed, and said that these words must be deleted. He also reminded the drafters that the word “after consultation” in line 4 of the clause must be substituted with “in consultation”. He then read out the subsection (h), incorporating these amendments.

The Chairperson then read out the Motion of Desirability.

The Bill was put to the Committee and both the Bill and Report of the Committee were adopted.

Security matters
The Chairperson informed the committee that Mr Selfe and Ms Seaton had raised two issues for discussion. The first related to the incident at Groote Schuur Hospital when Mr Hahn had been killed, and the second related to the escape of an inmate from the Johannesburg Prison last month.

The inmate was a citizen of France, who was arrested and awaiting trial on charges of fraud and money laundering. He was also wanted by Interpol and about R36 million was involved. Reports indicated that two people, in police uniforms, had removed the inmate on the explanation that he was required for further investigation.  They were not in fact policemen. This was an extremely serious matter and the Department would be required to explain how such a high-profile inmate could get so easily from a maximum security prison.

Mr Selfe agreed that the situation was indeed very worrying and that the escaped inmate was “a big fish”. There were a number of aggravating circumstances, which he set out as follows:
1)  This man was wanted in South Africa for falsifying documents, money laundering and fraud. He understood the Interpol charges included money laundering, fraud and murder.
2) He was held in the maximum-security section of the Johannesburg Security Prison.
3) It took a week for Correctional Services to discover that the inmate was missing. Surely, after lock-up, a roll call should be held.

Mr Selfe said that he must emphasise the deeply serious nature that clearly needed to be investigated by the Department. However, he was concerned that investigations and reports often did not fully answer the questions. He suggested allowing the Department a reasonable, but not too lengthy, period to conduct this investigation and give it a deadline by which officials must present the report of the investigating team, even an interim report. He suggested that a week or two would be sufficient for a preliminary investigation, before the Department must report to the Committee.

Ms Seaton supported this suggestion, but felt that one week would be more than sufficient given that the Department had already had some three weeks to deal with the issue.

Mr M Phala (ANC) referred to the issue of identification and nametags; and asked whether signatures corresponded with ID documents.

Ms W Ngwenya (ANC) agreed. Inmates had to sign out, and also needed the signature of the Correctional Services official who was on duty.

Mr S Mahote (ANC) supported the necessity of a report but was concerned that the Department should not simply respond that they could only give a temporary report if other investigations were taking place. The officials should be prepared to answer every question.

Rev L Tolo (ANC) felt the Area Commissioners had to be involved in this matter. He pointed out that if an inmate was transferred from Port Shepstone to Durban the Area Commissioner had to be involved. The official on duty who had signed the document was not directly involved as a senior official, in the post of an Area Commissioner. He pointed out that there had been problems when the person who was on duty had been allowed to sign inmates out without the approval of the Area Commissioner. He felt that if the Area Commissioner was involved there would be less problems.

Mr H Cupido (ACDP) submitted that regrettably this type of situation was repeating itself over and over. He said that there should surely be an intention on the part of the Department to train its staff to be a lot more vigilant as to who and in what circumstances was removing inmates. He was very concerned about what was happening. He said that he was forced to the conclusion that Correctional Service officials were taking part in this kind of escape. Therefore, when the Department came before the Committee it was important that the Committee be able to see the Closed Circuit Television (CCTV) recording to see if Departmental members were involved, as this would make the case a lot simpler. It seemed that the Department of Correctional Services (DCS) was turning a blind eye to many matters that did require to be fully attended to during investigations.

Ms Seaton said that what clearly came out was the serious lack of security and security procedures. She noted that the Committee had had been talking for many years about an integrated IT system. She believed, especially when dealing with a high-risk prisoner, that the officials from DCS should have checked the police officers as well. It was not just a question of seeing the name tag. Duly appointed officials did carry identity cards, but these were quite easy to copy. It was time that this issue also be taken up with South African Police Services (SAPS) to ensure that something more tamper-proof was produced, that could be sealed. The information should also be available on the computer systems, so that an alleged official collecting an inmate should be able to be verified on the computer as well. Until that integrated system was installed this problem would be repeated time and again. She urged that the Committee should be pushing for the integrated computerised system and make sure that these security breaches did not happen again.

The Chairperson agreed with Mr Mahote that there would seem little point in calling in the Department now and then again. There were outstanding matters. They owed the Committee explanations and answers. However, there would be no point in hearing them say that the matter was very sensitive, that SAPS and Correctional Services or a unit or Crime Intelligence was still investigating and therefore no answers could be given. He pointed out that R907 million was being spent on people on suspension; and many of these suspensions related to escapes. The Zonderwater case was two or three years old, and yet those officials who had been suspended were still receiving their salaries while on suspension. The same was true of the Groote Schuur matter a couple of years ago and this would apply to this Johannesburg escape too. He suggested that the Committee must adopt a very firm stance that this could not be allowed.

The Chairperson indicated that he disagreed with Ms Seaton’s remarks on security. R400 million or more had been spent and the UN sector came in as well. This Committee had stressed, however, that all those working in Maximum Security must be screened and vetted. While it would be possible to have the CCTV cameras, there was nothing to prevent them being switched off, and the question would then be by whom this was done. The human factor came into play. He said that despite all the spending on fences and other systems, the fact remained that people were still escaping. This was a high risk, white-collar crime suspect and he said that the R36 million identified as involved so far could be only one such case. The Chairperson believed that a more effective tool for the Committee would be not to approve the budget.

Ms Seaton said that what she had intended to stress was not only the security around the prison; but that a person should not be accepted because he was wearing a uniform.

The Chairperson agreed with this; saying that an Intelligence check should know that no person should be accepted into the prison without ID. The Committee would like to insist on thorough searches of every visitor. 

Kimberley Oversight Visit
The committee secretary read the draft programme, which was accepted by Members.

The meeting was adjourned.