Lockdown case backlogs; overcrowding & release of inmates: Minister's briefing

Justice and Correctional Services

24 June 2020

Chairperson: Mr G Magwanishe (ANC)


Meeting Summary

Video: Portfolio Committee on Justice and Correctional Services 24:06:2020
Audio: Ministry on lockdown related issues: Case backlogs & release of inmates; Update on overcrowding in correctional centres

The Minister and the Department of Justice and Correctional Services gave a briefing on lockdown court case backlogs, overcrowding in correctional centres, and the early release of certain inmates. Analysis of the inmate population revealed that the bed space in correctional services sits at 118 572 whereas they had a total of 149 330 inmates, with 96 272 sentenced inmates and 53 058 remand detainees. As of 19 June only 3 557 inmates had been released on special parole and the release breakdown per province was: Eastern Cape 275 inmates; Gauteng 625 inmates; KwaZulu-Natal 787 inmates; Limpopo, North West and Mpumalanga 490 in total; Northern Cape and Free State 555 in total; Western Cape 825 inmates. A plan was presented on how to decrease the case backlogs within the country. One of the suggestions was the optimum use of plea bargaining to finalise cases more quickly.

Committee members said there had been a considerable spike in district and regional court case backlogs. The numbers were extremely concerning. They asked if the spike in case backlogs was a result of arrests for Covid-19 offences. They asked about the impact on the Department's project of the 2020 Supplementary Budget presented that day by the Minister of Finance. They asked for a detailed breakdown of the 19 000 inmates to be released; about renovations to correctional centres and the fact that overcrowding was not a new problem and no progress appeared to have been made since the previous year. The criminal record of those arrested for Covid-19 offences was a big concern and the Committee urged action on this.

The Committee Report on the new organisational structure of the Public Protector was adopted and the . Committee Programme was discussed.

Meeting report

Minister's briefing on lockdown, overcrowding, release of inmates and case backlogs
Minister of Justice and Correctional Services, Ronald Lamola, briefed the Committee on the Department's continued delivery of services while facing a global pandemic. Government still implored all South Africans to continue taking preventative measures and follow the restrictions and regulations so that they are protected from possible infection. President Ramaphosa performed a delicate balancing act, through Cabinet, by announcing the easing of lockdown restrictions to allow for economic activities to resume. The easing of restrictions is in no way an indication that South Africa was a coronavirus free nation. On the contrary, the numbers are increasing and it places a heightened responsibility on all citizens to follow the required health protocols to mitigate the risk of transmission. The two Departments within the Ministry have not been spared from the effects of Covid-19. Some of the courts were closed for decontamination after positive cases were detected. Correctional centres continue to report positive cases for both officials and inmates. The Ministry had a comprehensive strategy which enabled it to manage and treat the infections. To date, Correctional Services has recorded 1485 recoveries and 497 active cases. The Minister sent his condolences to the families of the 16 citizens in the correctional centres who have died as a result of Covid-19. The Department of Justice and Constitutional Development was experiencing lower numbers with 93 active cases and a total of three officials have died. The Minister once again sent his condolences to the families of the deceased.

The Ministry’s mandate required them to administer justice in the country and also ensure the incarceration of offenders. They were constitutionally obliged to incarcerate inmates who have been lawfully sentenced by courts irrespective of accommodation capacity at their disposal. The rate of imprisonment in the country for awaiting-trial offenders was increasing at a rate which required the Ministry to urgently interrogate the linkages within the criminal justice system. Analysis of the inmate population reveals that the bed space in correctional centres sits at 118 572 whereas they have a total of 149 330 inmates, with 96 272 sentenced inmates and 53 058 remand detainees. This means that 55.1% of the inmate population are yet to have their date in court. These numbers cannot be viewed outside of this country’s socio-economic conditions. The prison population is largely constituted of those from disadvantaged backgrounds and specifically young black males. Some are in the correctional centres for economic crimes like shoplifting, stealing or robbery. There are also those who have committed heinous crimes.

The high number of those in prison for economic crimes has prompted the Ministry to ask if incarceration should be the only option at its disposal. The Ministry noted that the sentences for economic crimes are short term. The sentence offenders did not benefit from effective rehabilitation programmes in correctional centres. Short term incarceration for such offences do not give enough time for the Correctional Services system to reform and rehabilitate the offenders particularly those who are serving less than two years.

There was a national overcrowding task team to help manage overcrowding through a multi-pronged strategy. Overcrowding was a multi-dimensional challenge caused by various societal factors. The task team continues to work to help with reductions and the Covid-19 pandemic has made its job more urgent. In the next five years, additional space will be created for 3000 beds through upgrades and the construction of new facilities. However, experience has taught that it is not possible for infrastructure projects to outpace the rate of convictions due to the high crime rate in the country.

Minister Lamola addressed sentence remission and the special parole dispensation. On 8 May 2020 the Ministry had elaborated on the special parole dispensation after the President had granted the placement on parole of selected categories of sentenced offenders. This was a measure to combat the spread of Covid-19 in correctional facilities which are considered high-risk areas for infections by the World Health Organisation. Those who committed violent crimes, sexual offences and other categories of serious crimes were excluded from this parole dispensation.

The Ministry has only been able to release 3 557 inmates across the country and none of them have been rearrested thus far. He provided a breakdown of number of inmates released per province. In the Eastern Cape 275 inmates were released; Western Cape 825 inmates were released; Gauteng 625 inmates; Northern Cape and Free State 555 inmates were released; Limpopo, North West and Mpumalanga 490 inmates were released; KwaZulu-Natal 787 inmates were released. What caused the delay was victim-offender dialogue (VOD) because the process was difficult to do while under lockdown. When a victim is engaged over the telephone it is rather cold and impersonal. The victims still prefer to engage physically with the offender. There was also the delay caused by the taking of DNA samples which is one of the requirements before an inmate is released. It was very important in case the inmate reoffends. It helped the South African Police Service to detect and know who was involved in the specific crime. The fact that SAPS, Ministry officials and parole boards were also hit by Covid-19 compounded the delays. The Ministry has recently appointed substitute parole board members to help the process so they were hopeful that the situation would improve.

Minister Lamola discussed the courts, saying they had developed and adopted a criminal case backlog plan to provide guidelines for the management of backlogs in the criminal court rolls exacerbated by the national state of disaster and lockdown. Justice must continue to prevail under the Covid-19 circumstances. They were working with the judiciary and all relevant stakeholders to ensure that operations in the courts continue while observing the gazetted lockdown regulations. It was not easy for the courts to function because even judicial officers were scared of working in the facilities and the courts. Some of the prosecutors, including Legal Aid SA lawyers, had concerns about inmates coming to court and inmate consultations.

The plan agreed to by all the stakeholders will be able to help in the elevation of the situation. Most courts have developed priority rolls in conjunction with the National Prosecuting Authority, Legal Aid SA and the legal representative of the accused person. This enables a number of courts to function. The number of court hours was also a matter under discussion. The new normal required a new way of doing things. For the courts to function required engagement with various stakeholders and it was a complex matter. Technology was easier to use for remand cases and civil trials but they were not yet at the stage to conduct a fully-fledged criminal trial using technology. He thanked the Committee for their engagements as they were always eye opening.

Court Services briefing
Adv Jacob Skosana, Deputy Director-General: Court Services, apologised for the late delivery of documents only the day before the meeting. He said there was a meeting with the Regional Court Presidents today about putting in place a plan to reopen the courts. The Minister stated that for every court there must be a priority roll. That roll must take into account cases that should have been enrolled during lockdown and were not enrolled due to the lockdown. That roll also needed to take into account the cases which have been on the backlog. The priority roll is comprised of five categories of cases. The first category of priority are where the accused persons are in custody. The second category are cases involving gender based violence and femicide. In his address the President highlighted that the second pandemic South Africa was facing was one of gender based violence. The third category are corruption cases. The fourth category are cases that involve children. The fifth category are cases that judicial officers believe must be on the priority roll.

The Department had engaged the stakeholders such as the National Prosecuting Authority (NPA) and Legal Aid who all contributed in the process. The court clerks will draw up the court roll taking into account the priority roll that was discussed. Once these cases are on the priority roll, the NPA will be involved, allocation of legal aid will be given, SAPS investigation will be fast tracked and the correctional centres notified. The meetings with stakeholders discussed the responsibility of everyone to ensure that when a court matter arises, it will not be postponed.

The Department was trying to increase the collection and collation of statistics and data. The database created will help all stakeholders within the court environment ensure all the cases put on the roll will be dealt with. For some cases, new summons needed to be sent out because people were not informed about the change of the dates under lockdown. That entire process was beginning to unfold. There are measures in all the courts to ensure that cases find their way onto the priority roll.

There has been the challenge of positive Covid-19 cases found within courts and therefore courts closing down for decontamination. The Department has adopted a draft protocol and has consulted with the head of judiciary. That draft protocol details the circumstances in which a court may be closed, the duration the court may be closed, processes involved in disinfecting and alternative measures that need to be put in place during the closure. The draft protocol is in line with health guidelines set out by the Health sector. A total of 68 courts have been closed since the start of lockdown due to infections. The protocol allows for a risk assessment exercise. When there is a positive case in a court there needs to be an assessment looking at where the person was in court and with whom they came into contact. This risk assessment will be done to see if the court needs to be closed. With this protocol Court Services would be able to see which areas of the building provide the greatest risk and corner off those areas. Deep cleaning sessions were being performed in holding cells. All those measures are being put in place to minimise the spread of the virus. That protocol was needed to improve the necessary hygiene measures as part of the courts practice. The draft protocol would be circulated to Committee members so that Court Services could have their input and guidance.

The Chairperson noted with concern that the late submission of documents was not taken lightly by the Committee. When documents are not submitted on time it affects the Committee’s ability to perform its oversight function. To be bombarded with documents a day before the meeting was not acceptable. The Committee would no longer accept receiving documents late. The Committee would cancel those meetings and report the matter to the Speaker.

Department of Correctional Services (DCS) briefing
Mr Mandla Mkabela, DCS Chief Operating Officer, said that there had been an increase in remand detainees. Correctional Services was looking at putting interventions in place to reduce the number of remand detainees.

Ms Vuyi Mlomo-Ndlovu, DCS Acting Chief Deputy Commissioner: Remand Operations Management, detailed the reduction management of the remand detainees. The population of remand detainees was shared with other stakeholders in the criminal justice system. More than 80% of the remand detainees are detained without the option of bail. Those that are considered are the remand detainees with bail. DCS was working with the Department of Justice and the NPA and providing them with a list of remand detainees so that they could assist DCS with the implementation of section 63(a) and section 63(1) of the Criminal Procedure Act. Application for bail review was also been looked at. With the analysis DCS has been doing since 2019 they have noticed that there has been an increase in the population of remand detainees. In January there was a peak where the population was around 53 000. By April there was about 51 000 but due to Covid-19 there was a sudden increase. By 5 May the population of remand detainees was 57 000. When the country entered lockdown alert Level 4 and then Level 3, DCS was included in the priority list and that was the focus of the courts. Since the courts started to open, the remand detainees have started to decrease. As of 20 June the remand detainee population was reduced to 52 000. The Department of Correctional Services were facing some challenges. To contain the virus at their facilities, it was decided that the remand detainees should pay their bail in court. Some courts were not ready for remand detainees to pay their bail. DCS hoped that this matter would be resolved because if more people were involved, with the already serious overcrowding, it would likely increase the number of who are Covid-19 positive.

Mr Azwihangwisi Nesengani, DCS Director: Community Liaison, said DCS Community Corrections was prepared to accommodate the 19 000 parolees for release through the special parole dispensation. DCS has 218 Community Corrections offices all over the country that are ready to cater for the special parole dispensation. These offices have satellites and those are ready to monitor compliance of the parolees and probationers. DCS Community Corrections was ready because in the past they had 71 528. Community Corrections currently has a population of 56 632 after the partial release of offenders on parole. The special parole dispensation did not have much of an impact on their personnel and their personnel were ready to deal with it. They had 1 854 personnel entrusted with the monitoring of parolees and probationers. DCS has suspended low and medium risk monitoring during lockdown and they were monitoring but through the telephone. Covid-19 has had an impact on their offices as some officials tested positive and as a result some offices had to be closed. The closing of offices did not have an impact on the monitoring because they did most of the monitoring over the telephone. They provided all their officials who did in-person monitoring with PPEs. The Victim Offender Dialogue (VOD) functions of DCS were still suspended until announcement of Lockdown Level 2. That will be reviewed then. Restorative justice has been suspended because when these processes are conducted telephonically a rapport and working relationship is lost with the victims. Those processes were under review so that DCS can engage in VOD and restorative justice in person.

Mr Lucky Mthethwa, DCS Acting Chief Deputy Commissioner: Incarceration and Corrections, spoke about the management of overcrowding. The DCS mandate was to rehabilitate offenders in humane and safe conditions while observing their dignity. The occupancy level was at 125.16%. There were multiple strategies for bed spaces which was at about 118 000. DCS was still facing many challenges. The success of the criminal justice system to arrest and convict resulted in the increase in the inmate population but the inherited infrastructure does not address rehabilitation.

They were also faced with the minimum sentencing policy and this regime maintains overcrowding in the correctional facilities. There had also been an unprecedented increase in remand detainees due to the Covid-19 regulations plus there was a Covid-19 impact on human resources due to officials who had to go into quarantine or isolation. They were thus happy to announce the special remission of sentences provided to DCS. The Covid-19 special parole dispensation was for about 19 000 inmates. As of yesterday DCS had seen a reduction of 3 726. All of the challenges facing DCS are being addressed. What hampered the reduction of the inmate population was the significant number of inmates who did not qualify for the parole dispensation. These were offenders who committed serious and high risk crimes. DCS had about 57 maximum facilities and the offenders there do not qualify for the special parole. That was a percentage of 23.63% who had been in prison for a long time. DCS might not achieve the due date it set for itself as it had set a 10 week deadline to finalise all special parole dispensation cases. DCS had requested an extension to address the challenges that have been highlighted, especially due to officials that had to quarantine.

They were using a multi-pronged strategy for the management of overcrowding with the understanding that if they worked in an integrated manner, with their partner departments, they would be successful moving forward. They also had programmes tailored for the 196 state patients within their facilities. The Department of Health was assisting them with the transportation of patients to suitable mental health care facilities. He also noted the children they had in their facilities – there was a child inmate population of 96. There were 55 mothers with babies in correctional centres. They were all being taken care of within DCS facilities. They have a managing structure for the overcrowding with a national overcrowding task team and regional task teams. They facilitate the reduction in the number of inmates following the protocols put in place. They were going to monitor the overcrowding with the expectation that the partner departments would assist them in reducing overcrowding.

Adv G Breytenbach (DA) referred to the release of Sergio Jonkers in Swellendam who was released on 22 June on early parole as part of the Covid-19 releases. He was sentenced to five years after being convicted of culpable homicide, having strangled his distant cousin and attempting to conceal the crime by dumping the body in a river in 2018. He was sentenced earlier this year. He is now wandering the town of Swellendam. No discussions were held with the family of the victim about his release. The family woke up to this man wandering their town without any notice. Was he released due to the Covid-19 releases? If so, since when did this type of crime become a minor offence? Why were no discussions held with the family of the murdered victim?

What was the position about the proposed directives for courts under Lockdown Level 3? There seems to be a mismatch going on. Some were withdrawn and others not. Nobody seems to know what is going on. What is the proposed plan to deal with the increased case backlog? How will the backlog be decreased? She was concerned about slide 12 of the presentation. One of the suggestions is the optimum use of plea bargaining. It had been some time since she left the NPA but there were some strict rules for plea bargaining when she was there. Are those rules still in place? Plea bargaining was not for the faint of heart and needed to be managed correctly. Has there been enough training? Are there enough prosecutors who are sufficiently experienced for the optimised use of plea bargaining?

The Minister told us how many people have been released. What protocols were employed to ensure their safety and the safety of the community in which they were being released prior to their release? What was the state of overcrowding prior to the releases? What is it currently? How much has it improved? What measures were put in place to ensure community corrections were adequately resourced to deal with the releases and the planned future releases? Prior to this, community corrections were woefully under resourced and were not capable of dealing with the job they had to do. If they were going to be flooded with these releases, how were they going to ensure that they are in a position to do their job.

It looked like there had been a considerable spike in the district court backlog with almost 17 000 cases and the regional court had almost 4000 cases. Those numbers were extremely concerning. There was already problems dealing with the backlog and there was no getting it worked down by any significant measure. Is this spike a result of arrests for Covid-related offences? At some point the Committee should be given a breakdown of the Covid-related cases. Which of them can be regarded as petty and which are more serious? What was the position of the 230 000 people charged or fined for Covid-related offences? How many of them paid admission of guilt fines? What is going to be done about the fact that they now have a criminal record? It was a deeply concerning state of affairs and it needed to be addressed. During 2018/19 DCS said that eight correctional centres had been closed for renovation and repairs. What was the progress on those eight? When are they coming online? Swellendam and Brandvlei Maximum were closed as a result of dilapidation. How a prison reached a stage of dilapidation she did not know. What was the offender population in those two centres? Where have they gone to? What are the plans for these two facilities?

Mr W Horn (DA) said the special adjusted budget announced today by the Minister of Finance meant the Department of Justice faced a R262 million budget cut. Then there is a R284 million virement built into the Justice Department budget. To what extent has the Department started planning to incorporate this budget cut specifically if the plans for case backlog management are to materialise? Logic implies that this might incur additional expenses to implement the plan. For the Department of Correctional Services there was no net cut. There was a R416 million cut. Then there was a R484 million virement. What DCS projects would be impacted by the budget cut? The Committee should receive an update on plans to deal with the budget cuts.

He referred to the 19 000 that have to be released on special parole. How many inmates qualify by way of the criteria set by the Minister of having passed the minimum detention period or will approach this period in the coming five years? They have now benefited twice in the past six months from a special parole dispensation. On 16 December 2019, the President announced a special remission and the Minister said that just under 15 000 inmates would receive a sentence decrease of between 12 and 24 months. How many of the 19 000 will have benefited from the two special remissions?

Mr Horn commented on slides 25 and 26 on how DCS would manage the release of offenders. The presentation seemed to be self-contradictory. On the one hand it says stringent measures have been put in place to manage the release. The Minister has assured South Africa that these people are not released unconditionally and that they do remain a part of the system. However, in the presentation it is clear, for all practical purposes, offenders are going to be released into society without being part of the system. In the words of the presentation they are mostly low and medium risk inmates. During Lockdown Level 3 no monitoring of low and medium risk parolees is going to take place. It was not part of the presentation but he had it on authority that as part of the Covid-related measures community corrections were not taking part in any reintegration programme with parolees. The only way that the majority of the 19 000 released will be part of the system is if there is telephonic monitoring. He did not think that telephonic monitoring was worth anything. There was no way to ascertain where a parolee is physically. There was no way of ensuring that the official was actually talking to the parolee. This was really worrying. The Committee should receive a detailed breakdown of the low and medium risk inmates that are to be released so that they have a clearer picture on who is being released. There are 1 854 officials within community corrections and the Committee was told that is a ratio of 1:30. He wanted to know if the 1 854 were monitoring officials? Within community corrections there are human resource officers, logistical officers, secretaries, office managers and transport officials. How many of the 1 854 officials were working on a daily basis on the monitoring of parolees?

Mr Horn referenced the overcrowding and said it was quite clear that certain management regions, specifically the Eastern Cape which been plagued by Covid-19 amongst both officials and inmates, were above the national overcrowding average of 125%. These correctional centres have overcrowding of more than 200%. If the rationale for the release of prisoners was to ease overcrowding then parallel to that there should be a programme of action to redistribute sentenced offenders. The historical objection to moving sentenced offenders further away from their home was visits from relatives. No visits were allowed during the Covid pandemic so that objection does not apply now. Despite the releases, certain centres may still suffer from overcrowding. These centres could be like ‘bush fires’ in spreading the virus.

Mr Horn commented that the Department of Justice case backlog plan was not much of a plan and looked like a work in progress. He understood and agreed with the priority roll. However, to state that they had a plan but they were also considering longer hours clearly indicates that there was no plan yet. The Minister at the start of his presentation said ‘we are adapting to a new normal’. South Africa could have further waves of the virus for months and years to come. The new normal must be that the Department had a plan that could be implemented. In that plan, consideration must be made for the fact that courts might be closed down temporarily because of infections. The only way this would be a workable plan is if it worked with the numbers. Previously the Deputy Minister had appraised the Committee on how the backlog court roll has grown. The presentation only has the figures up to 26 May and it was now nearly 26 June. The plan needed to have targets of how each court will deal with its specific backlog. Otherwise it is not a plan that can be implemented. He wanted the Department to finalise the plan and then come back to the Committee.

Ms Wilma Newhoudt-Druchen (ANC) said that the Minister mentioned about 3 000 parolees have already been released. Which dates were they released? The reason she asked was because in the Western Cape it was said that crime has spiked due to the parolees released through special dispensation. She was puzzled as the figure the Minister mentioned was really low but what has been said in the media in the Western Cape is a figure of around 6 000. She was curious about when they were released and the difference in the number. Were they released during lockdown? Are they being monitored by DCS Community Corrections? Could DCS provide the Committee with a provincial breakdown of the parolees? Did DCS have a plan for releasing the full 19 000? The impression given by the media is that almost all the parolees have been released so the information received in this meeting was quite different. How many bed spaces would be in the two centres, Brandvlei and Swellendam, in the Western Cape? She referenced a correctional centre in Gauteng which had overcrowding well beyond 200%. It had a bed space of 2 680 but the actual number of prisoners was about 6 480. What was the DCS plan to decrease the overcrowding in that particular centre? It seemed as if it has not managed to decrease overcrowding in that centre.

Ms J Mofokeng (ANC) she was disturbed about the media reports of 6 000 inmates released in the Western Cape. The MEC of the Western Cape said the 6 000 people who were released are causing domestic violence, robbery and other crimes. She wanted to know from the Minister and the Department where did this come from? She expected the police to tell the Department about the arrests made. She wanted to a breakdown of how many offenders were released in each province to date.

Ms Mofokeng requested a list of state patients, according to gender, and the patient programmes. These patient should be cared for and rehabilitated so they could also form part of the parolees who can be released. On prosecutions, she sympathised with the Department about its backlogs. However, she was very worried because of the lack of uniformity within the regions in the manner in which pending cases are being dealt with. She wanted clarity on that matter. She knew that the Department was dealing with integrated case backlog management and it would prioritise civil cases and cases that deal with corruption and sexual offences. As there are 68 courts closed under Level 3, it looks like that will only increase the backlog. Could the Committee receive a breakdown of cases prior to lockdown? How many cases did it have - especially corruption and fraud cases? There were some corruption cases that were over 10 years old. It stated that corruption cases would be prioritised but there are some corruption cases that are 10 years old. How many corruption cases are over 10 years old? What is the status of those cases? There was a performance management problem with magistrates and prosecutors. Some magistrates and prosecutors are promoted and they have cases that are still unfinished after 10 years.

Adv H Mohamed (ANC) said he also wanted clarity on the details of the 19 000 inmates to be released. On 8 May the Minister announced the special parole dispensation for certain low risk categories of offenders. That excluded inmates sentenced for sexual offences, murder, attempted murder, gender based violence and related crimes. In the Western Cape there was an MEC and a councillor, Angus McKenzie, who directly said that the 19 000 inmates have already been released and that 6000 of those were in the Western Cape. It was important for the Department to clarify this statement in the interests of the public as there has been a lot of queries on this particular issue. He wanted the minister to clarify this as that has been in the news and social media. He wanted clarity on overcrowding in correctional facilities. What was the capacity challenges with regard to bed spaces?

Mr R Dyantyi (ANC) said that overcrowding was a matter that was raised last year already. The Ministry had presented a strategy to the Committee on how it would deal with overcrowding. Overcrowding affected the bed space, had an impact on maintenance, the health conditions of inmates and most importantly hampered rehabilitation. The current presentation has reviewed that the current DCS capacity cannot match the intake of prisoners. If the Covid special dispensation is put aside and the overcrowding is focused on he was not able to see what progress has been made. The previous strategy dealt with many other elements to address overcrowding that were missing from today's presentation. The Department has not done anything else since the previous plan was presented to the Committee. He asked the Minister if the Department had any sort of progress with overcrowding? The Covid-related special dispensation looked like an opportunistic intervention. It did not look like it belonged to any systemic plan to deal with overcrowding. He felt that no progress was being made on overcrowding at all. In the Eastern Cape, the capacity of the Burgersdorp facility was over by 268%. The presentation did not have a breakdown of the inmate population and from which areas they come and what offences were committed. Such a breakdown would be needed. What the Committee heard in the presentation was not very helpful. He mentioned St Albans prison that he had spoken to the Department about last year. It was now mainly used for remand detainees and he was not sure why that decision had been made. He highlighted another crisis area that had suffered from overcrowding. Many of the centres were above the average of 125% capacity. Was the Department in a position to tell the Committee that they were making progress to decrease overcrowding?

Correctional Services response
Mr Mkabela, DCS COO, replied that the Correctional Services was really dealing with the challenge. It should be noted that the DCS was receiving sentenced offenders and remand detainees on a daily basis. In Johannesburg 27 courts were sending offenders to medium centres. As part of the eight-pronged strategy they would be moving offenders around for equal distribution in the centres but they continued to receive offenders and remand detainees in large numbers. The strategies they were implementing were mainly about even distribution in terms of the capacity they have. They did have maximum sentenced offenders that were not easy to move to other centres that were not designed to hold maximum sentenced offenders. It was impossible to move remand detainees from Johannesburg and detain them elsewhere as they attend courts in the Johannesburg area. The claim that 6000 offenders were released in the Western Cape was not true. After his colleagues had responded, any unanswered questions would be replied to in writing.

Mr Mthethwa, DCS Acting CDC, confirmed that in the St Albans management area there were various facilities within the area. St Albans capacity was over 216.29%. The bed space was 706 and the inmate population was at 1527. DCS did not have full control of the remand detainees. Most of the centres that have overcrowding over 200% are where there are remand facilities. The special remission last year and the Covid special parole dispensation had a positive impact on overcrowding.

Mr Mthethwa replied about the low risk offenders who qualify for the Covid special parole dispensation. As of 19 June a total of 3 557 inmates were released and the release breakdown per province was: Eastern Cape 275 inmates; Gauteng 625 inmates; KwaZulu-Natal 787 inmates; Limpopo, North West and Mpumalanga 490 in total; Northern Cape and Free State 555 in total; Western Cape 825 inmates. By 23 June, they have placed on parole 3 875. There are 3570 males and 305 females.

Mr Mthethwa replied that the majority of the state patients are still under remand. The crimes they have allegedly committed are serious crimes. It includes gender based violence, murder, rape and related crimes. The Department would get the exact statistics and forward this to the Committee.

Mr Mthethwa responded to the capacity challenges and confirmed they had a capacity of 118 572. There are six facilities that are still under renovation. DCS would provide that the number of Brandvlei and Swellendam bed spaces to the Committee in writing.

On what Correctional Services was doing to address overcrowding, Mr Mthethwa replied that DCS had the multi-pronged strategy and within the strategy there were eight different dimensions. These different dimensions are being utilised to ensure that it addressed overcrowding. They were looking into evenly distributing sentenced offenders amongst the centres. DCS did have a significant number of challenges in reducing overcrowding. The success of the criminal justice system and the inherited infrastructure was hampering it in decreasing the overcrowding in correctional facilities. The minimum sentencing policy regime is limiting DCS as it is bringing in people who will be in prison for a very long time. That is why there were 57 facilities where the capacity was over 150%. The Covid-19 arrests has added to the overcrowding burden. The special remission of sentence and the special parole dispensation were a temporary relief.

Not all the strategies and plans put in place by DCS were making an impact due to the challenges previously discussed. All the relevant stakeholders needed to play a part. For the remand detainees, this was fully dependent on the police who arrested them for prosecution. He spoke about people who committed minor offences and did not have money to pay for bail or the fine. This challenge was addressed within the eight dimensions of their plan. There was the challenge of the retention of remand detainees as there were many remand detainees that did not have a support system - due to the social ills within communities - and this forced DCS to keep them within their facilities.

The Chairperson said that the answers given did not convince the Committee that the Department was on top of any of the issues. He asked the Minister to provide further responses.

Mr Nesengani, DCS Director, replied that before the December 2019 sentence remission, DCS Community Corrections had the same number of 1 854 officials. They had a population of over 71 000 before. Currently they were sitting at 56 000 with the same number of personnel. That showed that when they have the 19 000 released they were reverting back to the over 71 000. That was not going to be a major hiccup because they would be going to the normal population that they had before. He clarified that all the personnel in Community Corrections do monitoring. The only thing that needed to be noted was that some do it at a specific time but all of them monitor compliance of parolees.

Dr Riaan Botha, DCS Acting Deputy Commissioner: Facilities Planning & Property Management, responded to the questions about the centres being closed due to dilapidation. As part of the infrastructure plan some of the centres currently closed will be opened in the next five years. Brandvlei was one of these correctional centres in the Western Cape with a bed space capacity of 690. Currently it was closed. The DCS project execution plan anticipated to have that facility refurbished within the next five years. The due date was in 2022. Currently there was a process for the refurbishment of 100 bed spaces. Swellendam was also one of those small correctional centres that does not comply with the new generation of correctional centres in terms of design. It had a bed space capacity of 72. At this stage it did not form part of the infrastructure plan for repairs and renovations as that centre has surpassed its life expectancy. It was beyond economical repair. It would not be feasible to renovate the Swellendam correctional centre. There was also a small correctional centre in the former Transkei with a bed space capacity of 69. They had finalised that refurbishment project and it did reach practical completion with final completion scheduled for 15 July. All the construction had been done and they were just finalising the in-house work that needed to be done. In Gauteng, there was a correctional centre that was currently under construction. It had a bed space capacity of 640. There were contractors on site and they expected to have it finalised by the year 2022.

Court Services: Department of Justice response
Adv Skosana, Court Services, replied that the case backlog plan was about number crunching to see what the effect of the processes are. One thing the Department has learnt is the need to consolidate and pull together a common database. They would be using technology to assist them in case management. The judiciary, the prosecution and the police all need to be seeing the same picture. He suggested that these relevant parties needed to give their opinion on the case backlogs. Before 26 March lockdown the case backlog at a district court level stood at 28 445. As of 26 May the backlog stands at 45 159 cases. In the regional court the case backlog before lockdown was 27 976 and this then increased to 32 176 cases. These statistics indicate that there has been a spike in case backlogs because the courts opened up gradually under the different lockdown levels. Under Lockdown Level 5 there were no trials and only postponements. Those regulations were repealed. The whole country is on Level 3 and the applicable regulations came into effect on 2 June. The Level 4 regulations have not been repealed, but they will only become applicable should an area or district revert to Level 4.

The NPA was keeping up to date statistics on all Covid-19 related matters. All these numbers still have to be confirmed in the meetings with the judiciary and all relevant stakeholders. The judiciary was in charge of case flow management and case scheduling. The priority roll needed to be developed under the direction of the heads of the courts. In those meetings with stakeholders they would be able to give a status update on the implementation of all their plans.

Adv Skosana replied that 68 courts have been closed for short periods of time for decontamination but those courts were closed for only 48 to 72 hours. They are open again. They still operate on a ‘stop and go’ arrangement and that will be part of the new normal under the pandemic. The protocols that they were currently engaging in with their stakeholders would help them regulate that new normal.

Adv Skosana replied that people who had been charged under the Covid-19 regulations have paid their admission of guilt fine and they have a criminal record. The Minister of Police has referred that matter to the Minister of Justice and Correctional Services so it was a matter that will be under consideration. A process is underway to see what can be done as an immediate intervention in the amendment of the Criminal Procedure Act. There is a Bill that was currently being worked on and one could see whether to address that matter in it while a review of the Criminal Procedure Act was gaining momentum. The Minister will present to Cabinet on the status of that process.

Adv Skosana replied that the Department had arranged a virtual budget planning session on 29 and 30 June. It was a planning session informed by the need to revise the strategic plan and the APP in line with the Covid-19 realities arising from the instructions received from the Presidency and the Department of Planning, Monitoring and Evaluation. They will await that review process and they will be informed by the actual figures that came from today’s 2020 Supplementary Budget Speech. They were engaging with the National Treasury Director General. They would present how the budget cuts would be absorbed when they present their revised strategic plan to the Committee. The budget cuts were not as drastic as initially thought because there have been engagements with Treasury. There has been acknowledgement that the courts need to be kept running.

Adv Skosana replied that the Department would provide the information on the outstanding corruption cases to the Committee. He explained that the case backlog plan was a work in progress and there are structures that will be put in place. When the Department had confirmed all their figures through participation with all stakeholders they will be able to present more credible statistics for the Committee to judge and measure.

NPA response
Adv Shamila Batohi, National Director of Public Prosecutions, replied that there were currently no corruption cases on the court rolls longer than 10 years. There were cases within the DCPI space that were under investigation. All the requested figures and information will be provided to the Committee in writing as the NPA did not have that information at hand.

Adv Rodney De Kock, Deputy National Director of Public Prosecutions, first commented on overcrowding. Their approach was one of balancing the interests of society, the interests of the victims, the nature of the offences and the rights of the accused. All these factors needed to be considered to come to a decision that was in the interest of justice. People arrested where cases were of a nonviolent nature and where life is not threatened – where the accused can be released on warning, the prosecution tries its best to release them with a warning. This was done so that accused persons are not referred unnecessarily to correctional facilities. This was being done on a daily basis in the courts. Prosecutors were doing the best they can to scrutinise each case in terms of section 62(f) of the Criminal Procedure Act where they try to ensure that accused persons can be released under the supervision of a correctional services official. Then there were section 63(a) applications where bail was fixed and those accused persons are in facilities. The application would bring those accused back so that the court can reconsider those bail amounts and ideally get those accused released from prison. From the information the NPA had there has been a measure of success in reducing that category of remand detainees.

On plea bargaining, it was correct that the NPA used plea and sentence agreements as a tool to ensure that there is a speedy finalisation of cases. They believed that under the present circumstances this was a tool that they could possibly use better. It was on the statute book. There were stringent conditions that prosecutors must comply with. One of them being that they must consult with the victims. Secondly, they must consult with the investigating officers. They can only deal with matters where the accused are represented by lawyers. The NPA could not engage in a plea and sentence agreement with an accused that is unrepresented. It was a requirement that all plea and sentence agreements must be done in writing. These plea and sentence agreements must be presented to the courts. No matter what is decided between the NPA and the defence, ultimately the court is the final arbiter to decide if what the prosecution and the defence have agreed upon is in the interest of justice. Once the court has confirmed that the accused will be convicted, the court will then visit the provisions contained in the document in terms of sentence. This will be done to determine if it is a just sentence that the prosecution and the defence have agreed upon.

The legislation creates the safeguards required to ensure that the interest of justice is always served when a plea and sentence agreement is concluded. The NPA was simply saying that the plea and sentencing agreement was a tool available to ensure that there was a speedy finalisation of cases during this time of Covid-19. This provision has been on the statute book since 2001. The prosecutors were well versed in dealing with these matters. Plea bargaining would only happen under the supervision of senior public prosecutors and senior state advocates and only where the NPA has authorised prosecutors to do this. They were satisfied that this work happened under strict supervision in all the courts. They did believe that there was still an opportunity to do more of this. This also depended on the willingness of the defence of the accused and Legal Aid to work with the prosecutors. From his point of view he considered it something to be encouraged as the law makes provision for it.

Adv De Kock said that the increased backlogs is not as a result of Covid-19 arrests but is largely as a result of the impact of the state of disaster and the lockdown on courts. Prosecutors have been limited in effectively dealing with cases in courts due to the lockdown. Under Lockdown Level 3 with the creation of the priority roll, there has been an improvement in the finalisation of cases. During the first two phases of lockdown there were very few finalised cases. That must have had a substantial impact on the backlog figures. The NPA needs to look at strategies going forward on how to quickly finalise cases. It was going to be a challenge as the state of disaster has had a major impact on the functioning of the courts.

Adv De Kock replied on whether there was uniformity in the way prosecutors were dealing with cases in the courts. At the commencement of lockdown, a circular was issued from the NPA head office to all directors of public prosecutions on how they were expected to manage cases on the court rolls. When Level 4 and then Level 3 was announced a directive was issued by the NDPP to ensure that there was consistency in the way in which cases were prosecuted and managed throughout the country. The management of the courts were under the leadership of the judiciary to the extent that there are different practices in various courts. It was because of a different approach by the leadership of the judiciary of those particular courts. The prosecution was but a participant in the litigation. They were still dependent on what the judiciary determines in terms of how the cases are to be dealt with. The NPA tried its best to ensure that there was consistency throughout the country but that also depended on the decisions made by the judiciary.

Minister Lamola replied about inmates released through the special dispensation causing havoc in the Western Cape, saying the Department of Correctional Services has been responding to the matters occurring in the Western Cape.

Ms Mofokeng said that she would forward the information she had about outstanding corruption cases from 2008 to the Department. These corruption cases were important because it often involved people who have occupied high office and were high ranking officials. The Department needed to look through their records and collate all those corruption cases that were still outstanding.

Ms Newhoudt-Druchen asked for the provincial breakdown of the 19 000 in written form.

The Chairperson said that a decision on the Judicial Matters Amendment Bill as it relates to the Covid-19 cases needs to be finalised by July. If the Department was not ready by July they could work with the Committee and have a Committee Bill because this was a very urgent matter.

Minister Lamola noted the Chairperson’s concern.

Committee Report on Organisational Structure of the Public Protector of South Africa
The Chairperson said that the Committee had received a briefing by the Public Protector on the new organisational structure of the Office of the Public Protector. He asked if Members supported the report.

Ms Mofokeng said the report should be supported with the proposed amendments. Adv Mohamed seconded.

Mr Horn said that the Democratic Alliance reserves its position on the report. He noted that the report talks of the duty of the Public Protector to provide a document setting out the determination of remuneration allowances and other conditions of service. In the report it needed to be made clear that since this is a new organisational structure the Committee expects the Public Protector to table such a document. Her argument, in the meeting, was that remuneration stays the same as in the past. If there was a whole organisational review, it does not necessarily follow that remuneration stays the same. The level of appointment of some officials may differ from the past. As custodians of the Public Protector Act the Committee needed to request that that document be tabled in the National Assembly at least within 14 days after the Committee’s report is tabled.

Adv Breytenbach seconded Mr Horn’s proposal.

Mr Dyantyi said that the title of the Public Protector presentation stated ‘organisational review’ but in essence it was not an organisational review but a structural adjustment of the organisation. For an organisational review the macro structure of the organisation is changed. There were no changes to the macrostructure. She ‘shifted seats in the bus but the bus was still the same’. He was not sure if it could be considered an organisation review and invoke what Mr Horn was raising. He was not disagreeing with Mr Horn but he was just not sure what the Committee had received was an organisational restructure.

The Chairperson said that since there was no violent opposition, he thought that Mr Dyantyi’s point is valid but he was not opposed to what Mr Horn proposed. He suggested that the Committee integrate Mr Horn’s proposal into the report.

The Committee adopted the report.

Committee Programme
Adv G Breytenbach (DA) raised a concern about the changing of the meeting programme at short notice. The meeting times were also odd. She said it was not that they were unwilling to work but to have meetings at night was strange. She was Jewish and every Friday night from six o’clock was Shabbat. It was her Sabbath and she found it extraordinary that Parliament would schedule meetings on her Sabbath. She was available to attend meetings on a Sunday but none of the other members would sit on a Sunday because it was their Sabbath. She had difficulty with the matter and asked the Chairperson to look into this.

The Chairperson acknowledged the point raised by Adv Breytenbach that there was a challenge with programme changing. Parliament was trying to work as much as it can so that by the time the new term starts with new legislation, a lot of work would have already been done. This had been a very difficult time. One of the reasons for the programme changing was the instruction that all programmes should start after House sittings. Meetings that were supposed to be in the morning were all rescheduled for after the House sitting. There were limited slots that the Committee competed for. The Committee also wanted to free up space for the next term to concentrate on legislation that will be coming. There was already a Constitutional Court deadline on the drugs, trafficking and cannabis judgement which must be done before September. There were another three Bills coming around July / August. Therefore the Committee would be very busy in the second half of the year. The Committee had to stick to the set dates as it was out of the control of the Committee. Parliament recognises Friday as a working day. What has been the norm, although it might not be the correct one, is that even Adv Mohamed submits an apology when it is prayers or Eid and he cannot attend a meeting.

Adv Breytenbach accepted that the Committee was working in difficult times and that work needed to be done. If there were meetings scheduled for Fridays at six o’clock she would have to send in an apology as she had Shabbat. She would not be available as it was her Sabbath.

Mr James Selfe (DA) accepted the point made by the Chairperson. He did think there was a difference between working on a Friday and working on a Friday night. He sympathised with Adv Breytenbach. The matter should be discussed with the Chair of Chairs and some sort of arrangement should be made.

Mr Horn he made a plea that the Committee try and fix programmes for the term or for at least a month in advance. Members were housebound but they had other responsibilities other than their legislative duties. They should know in good time when they would meet. A good programme was a necessity and if the Committee knew what the points on the agenda were beforehand they could start preparing for the meeting.

Ms Mofokeng agreed that the Chairperson consult with the Chair of Chairs. She suggested that the Committee look into having meetings on a Friday morning at 8am and by 11am they would be done.

Adv Mohamed confirmed there would be a sitting on Tuesday afternoon and this matter will be discussed.

The Chairperson agreed that the Committee should have a predictable programme. The proposed programme for the term had been changed on a number of occasions because of interventions from Parliament. He agreed that the Committee should have a set term programme. If the programme was constantly changed then it would affect the way the Committee performed its oversight function on Departments. The Committee should improve in its performance next term when the Members are more used to the current situation. He noted the proposal to meet with the House Chairperson and discuss the possibility of either having meetings on a Friday morning or after hours on a Tuesday late afternoon. All of those matters would be discussed with the House Chairperson.

The meeting was adjourned.