Measures taken by Department to deal with COVID-19; with Minister & Deputy Ministers present
29 April 2020
The Portfolio Committee on Justice and Correctional Services and the Select Committee on Security and Justice met in a joint virtual meeting to receive a briefing from the Minister of Justice and Correctional Services and his two deputies, as well as the heads of the Department of Justice and Constitutional Development, the National Prosecuting Authority and the Department of Correctional Services. Members of the Committees expressed some concern that the Minister was unable to stay for the full meeting as he had to deal with the Level 4 regulations and attend a press briefing in this regard later that evening.
The Minister assured Members that the entire Criminal Justice Cluster was working together to prevent the spread of Covid-19 in an integrated way, particularly when it related to people who were arrested: from police van to the holding cell to the court cell, and to correctional facilities. Visits to correctional centres had been immediately suspended. All officials and service providers were screened on a daily and tested where necessary, as were new inmates who were initially held in isolation. Quarantine facilities had been prepared across the country. As at 28 April 2020, there were 128 cases of Covid-19 amongst inmates and officials across four provinces. In two cases, it appeared that the original infection came from an official attending a funeral. The Department of Health had been exceptionally helpful at all levels and Correctional Services had cumulatively screened 509 000 persons. 19 000 cloth face masks had been made at correctional facilities and it was hoped to increase that number to provide masks for all inmates. The Minister spoke of special protection for officials and inmates with co-morbidities but admitted that social distancing was not feasible in a correctional facility anywhere in the world. Regarding the Justice system, the Minister explained that the Master’s Offices had been particularly busy addressing urgent matters, including requests for permits.
The Acting Director-General of the Department of Justice and Constitutional Development added that access to courts had been limited and no trials were held in the lower courts, although postponement of cases, bail applications and the issue of protection orders had been dealt with. The draft directives for lawyers were being amended to make it easier for lawyers to do their work without putting anyone at risk. Additional matters for the courts were the limited trials, i.e. trials limited to corruption, sexual offences and gender-based violence, contravention of the Covid-19 regulations as well as cases where the accused was held in custody. Courts were disinfected if someone in a courtroom was detected as, or suspected of, being infected by the virus. All heads of institutions had been instructed to develop a plan for social distancing and adherence to Covid-19 protocols.
The National Prosecuting Authority informed the Committees that all the Thuthuzela Centres were open to provide support in cases of domestic violence or gender-based abuse and all services were available to the public. There was a concern about insufficient evidence for a successful prosecution in many cases relating to the new regulations and that would be addressed with the South African Police Service.
Members asked the Minister, at his next meeting with the Committee, to inform them of the implementation plan for Level 4. He was asked if there was a need for the curfew from 8pm to 5am. Members asked the Minister about the uprising and the security of inmates at Baviaanspoort Correctional Facility.
Members asked what was being done about the serving of domestic violence interdicts in those cases where the local police station had been closed because officers had tested positive for the Corona virus. Members noted that there was a demonstration of high volumes of criminal cases. Was that a result of contraventions of the lockdown regulations? How were court officials being protected? Were legal practitioners going to be allowed to attend to their offices and have access to clients without having to obtain permits first? What was being done about the prescription of civil claims?
Given the high levels of overcrowding in correctional facilities, how was the Department managing quarantine and isolation sites? Could the Department explain what lessons had been learnt in respect of what had happened in the correctional facilities in East London? How had those lessons been translated into initiatives to mitigate infections in other provinces? Members asked about the 19 000 offenders that were to be released. Were they first offenders and had they been found guilty of serious crimes? How many months of their sentences did they have, on average, left to serve? Was there a plan for inmates to be quarantined before being let out? What would happen to released criminals who did not have a home to go to? Could the National Commissioner appraise Members of the situation leading to the instability in the KwaZulu-Natal (Correctional Services) regional office?
Co-Chairperson Magwanishe stated that the Minister would deal with issues relating to both Justice and Correctional Services.
Adv S Swart (ACDP) asked how long the meeting would be. He was concerned as to whether there would be sufficient time to ask questions of the Minister once the presentations had been made.
Co-Chairperson explained that the Minister had sent the presentations in advance and Members would already have gone through the presentations, so the Minister would have 20 minutes to go through the briefing.
Mr Ronald Lamola, Minister of Justice and Correctional Services, informed the meeting that he had to leave at 17:00 as the latest regulations had to be completed and printed and he needed to be at the press conference at 18:00. He assured the Committees that his Deputy Ministers would remain in the meeting and would be able to respond to any questions on his behalf.
Dr M Ndlozi (EFF) stated that the processes required the presence of the Minister and that in the absence of the Minister, it rendered the whole process worthless. He would have thought that the availability of the Minister was of prime concern. It was unacceptable that he did not intend to stay for the full duration of the meeting.
Co-Chairperson Magwanishe explained that the Committee was acting under very difficult circumstances. Normally, the Committee would have met in the morning but the late afternoon had been the only timeslot available to the Committee, and the challenge that the Committee had with the Executive was that the Command Council had been meeting throughout the day. Dr Ndlozi’s concerns were noted and were genuine. He hoped that in the absence of the Minister, the Deputy Ministers would be able to engage with the Members but going forward he took Dr Ndlozi’s concerns very seriously.
Adv H Mohammed (ANC) agreed with the Chairperson that the Committee had no choice as Parliament had chosen the time and not the Committee. He understood that there had been only two time slots. He suggested a 15:00pm slot in future.
Co-Chairperson Magwanishe agreed that morning slots would be better but said that would have to be discussed with the House Chairperson. The concerns raised by Dr Ndlozi were valid.
Adv Swart stated that the matter had been discussed at the Chief Whips Forum the previous day and across political lines it had been agreed that it was not helpful for Deputy Ministers to be in attendance as they did not attend the Command Council. The Committee could understand on this occasion the Minister had to leave but maybe going forward, the Committee could find a specific time to engage with the Minister.
Co-Chairperson Magwanishe noted the point and suggested that the Committees might request a second meeting so that they had sufficient time to engage with the Minister. In the time available, he would ask the Minister to present.
Mr K Motsamai (EFF; Gauteng) said that his problem was with the Ministers failing to attend the meetings. Members needed the Ministers. Even in Parliament, Ministers failed to respect Members. What made it so difficult for the Minister to attend the full meeting?
Co-Chairperson Magwanishe assured Mr Motsamai that the Minister had wanted to attend the full meeting but the times clashed with an important Command Council meeting which he had to attend. If Members were not happy to proceed, then he would suggest that the Minister present and after he was done, if Members felt a need to engage with the Minister further, he would schedule a follow-up meeting with the Minister.
Co-Chairperson Shaik agreed that joint Committee meetings took longer than two hours and she agreed that a second meeting should be scheduled.
With the approval of Members, the Chairperson invited the Minister to present to the Committees.
Presentation by the Minister of Justice and Correctional Services
Minister Mamola greeted the Committees, the Acting Director-General of the Department of Justice and Constitutional Development, the National Commissioner of Correctional Services, the National Prosecuting Authority (NPA), Legal Aid Board and all institutions that fell under Justice and Correctional Services.
The Minister assured Committee Members that it was not a deliberate intent on his part not to be present at this accountability forum, which he attended whenever he could. The Command Council always sat on a Wednesday so he had asked that the Committees - if they could - sit on another day. The Chairpersons should check when the Command Council was sitting. Unfortunately, the choice of meeting time had not been in the hands of the Committee. Parliament had allocated that time and so he was there.
Unfortunately, he had another obligation which he had to discharge, which was to release the latest regulations at 18:00 and officials were still working with Government Printers to get the information published to give to South Africans before Thursday evening. Neither he nor the Chairperson was responsible for the scheduling of the meeting. He had asked that Parliament schedule the meeting differently as he appreciated the meetings because he gained a lot from insight from Members.
Minister Lamola appreciated the indulgence and understanding of Members as it was an extraordinary time dictated by the virus. The country had observed Freedom Day with the country restricted in movement and actions as was not usually the case. That was imposed by the dictatorship of the virus which had imposed restrictions and limitations of freedom for people across the globe, not only in SA. The virus had led to the restriction of movement and assembly of people to protect the right to life for everyone. The government had taken extraordinary steps to combat Covid-19 and to give the necessary support measures to those affected by the virus as per the Constitution that enshrines the right to essential health care for all citizens. The World Health Organisation (WHO) had declared the Covid-19 outbreak as a pandemic of international concern on 12 March 2020.
The President had declared a national disaster on 25 March 2020 in terms of the National Disaster Management Act. SA had been on national lockdown from 26 March 2020, during which time movement had been restricted as per the gazetted regulations. The lockdown had been extended to 30 April 2020 and from 1 May 2020, the country would be at Level 4, which still had restrictions in line with the adjusted risk programme adopted by Cabinet. Level 4 would lead to the categorisation of metropolitans, districts, municipalities and wards that might be identified by the Department of Health as health hotspots that might need concentrated or focussed attention.
Cabinet participated in the discussions from the perspective that it had to be guided by human rights, the value of life and the Constitution that protected the right to life. In that regard, the approach for the whole Department and the entire Criminal Justice Cluster was working together to prevent the spread of Covid-19 in an integrated way, particularly when it related to people who were arrested: from police van to the holding cell to the court cell, and to correctional facilities. The understanding was that if the virus arrived in a police holding cell, it would arrive in a court cell and affect every official who worked in courts and it would affect Correctional Services. As a result, Standard Operating Guiding Procedures (SOGP) were to be adopted for how Correctional Services had to treat inmates and officials, and how everyone who came into contact with the courts should be treated. That had created the necessity for him to issue directions.
Firstly, Correctional Services had to deal with the issue of visits to inmates. In terms of the identified strategy of prevention, containment and treatment, the first one was to prevent infection in the centres where there could be various sources of exposures. Inmates could, firstly, be exposed to the virus through visitors coming into the centre. That was an internationally identified risk.
The Minister informed the Committee that visits to correctional centres had been immediately suspended. The second line of risk was from officials who could have picked up the virus in the course of ordinary duties, and service providers created the third source of risk. That approach had its own challenges. Initially, there had been a scarcity of the protective clothing necessary to protect people and to contain the virus. That had affected the entire cluster from the Department of Justice and Constitutional Development (DoJ&CD) to the Department of Correctional Services and all the stakeholders. With time, the situation had improved. DoJ& CD had increased the amount of petty cash available to courts to allow centres to buy materials immediately. The Criminal Justice Cluster was of the opinion that inmates had not been exposed to high risk from the beginning but that did not mean that they would be insulated forever. The cluster knew that at some point, there would be a challenge and isolation cells and quarantine facilities had, consequently, been prepared.
Courts had limited access to those involved in a specific matter and Judge Presidents had issued directives limiting matters to particular, urgent matters. Those determinations were based on the various directions issued by Ministers and the public was informed of the postponement of cases. One success factor was the use of the Audio-Visual Remand Technology in 46 courts and remand centres. The AVR technology was used very successfully and challenges experienced had been resolved, but it was now clear that the Department had to intensify the use of technology in the entire system so that officials could interact. One of the risks identified by the DoH was the movement of paper and so the movement of dockets was a high risk area. That also led to a minimisation of the work that could be done in the facilities. The Department could speak about that in detail.
The Department of Correctional Services had mobilised other spheres of government to assist in the big cities where there were large correctional facilities, such as Johannesburg-Kgosi Mampuru II, Durban-Westville and Cape Town-Pollsmoor, to help with screening and testing of officials and inmates. The screening had given an early indication but he hoped that the full picture of the exposure would emerge in the near future. The DoH in the various provinces had been really helpful. As at 28 April 2020, there were 128 cases of Covid-19 across four provinces, including Head Office. The East London facility was the first to have cases of Covid-19 and now had 35 officials and 56 inmates who had tested positive for the virus. What had helped in East London was that everyone who had come into contact with the first case had been quarantined. DoH had agreed to test all inmates and officials in East London Medium C and when some officials proved positive, all inmates and officials in East London were tested. The majority who tested positive came from Medium C, so there had been no real spread to other facilities. In Worcester, the DoH helped with the same strategy as used in East London.
The issue was a global challenge. Social distancing was impossible in any correctional centre across the world. The best remedy was washing hands and screening inmates and officials. The challenge of overcrowding added to the impossibility of social distancing. Even if centres were only 100% full, inmates would have to share cells. That challenge had not been resolved by any country in the world. The WHO advised de-risking by cleaning hands, reducing the numbers incarcerated, etc. In the SA situation of overcrowding, even if the numbers were reduced by 30%, there would still be a challenge. It was the same in South America. The Department was still looking for a custom-made solution using the WHO and DoH recommendations, etc.
The Master’s Office at the courts had had to operate to deal with urgent matters and also to provide permits for people to attend funerals, etc. The Masters Office was developing the means to operate online as they received a lot of people in the office and that was a risk factor.
The legal profession had been allowed to do essential court work and so on. The ministry had requested comments from the Legal Practice Council to amend the current draft directives as some lawyers had complained that it was very difficult for them to work as they did not have access to essential service permits and they could not get to court in time, etc. Some matters needed consultation with clients, which was also a risk that the Department was concerned about. The draft directives were being revised to respond to some of the challenges that lawyers had raised. Hopefully, their issues could be accommodated in a manner that did not expose members of the public, the lawyers themselves or members of the National Prosecuting Authority and the Judiciary. The DoH had advised the Department that people with co-morbidities and people above the age of 60 would need to do a lot of self-isolation. That had been communicated to the Judiciary for them to find ways of dealing with such people so that professionals were protected in that space.
The situation had presented challenges, such as the scarcity of protective clothing, soap and sanitisers. The Department of Correctional Services had its own sewing machines which were normally used to make uniforms for officials and inmates. The Department had been advised to embark on a programme of making cloth masks according to the guidelines from the DoH and as recommended by the WHO. It was at an early stage but the Department would be able to produce masks for inmates and officials and even for the entire Criminal Justice System. Already 19 676 masks had been made to date. Correctional Services would look at producing its own soap according to DoH guidelines. In the next two weeks, the Department would indicate if it were able to do that.
Minister Lamona said that he was not going through the whole presentation. He had given the Committee a picture of the situation. The Department could provide the details that Members required.
Co-Chairperson Magwanishe asked officials to present. He required details from the two Departments.
Adv Swart asked if the Minister was not leaving at 17:00, in which case, the Members had only 15 minutes to interact with him.
Co-Chairperson Magwanishe stated that it would be extremely unfair to conclude matters with the Minister in 15 minutes so he suggested that the Members engage on non-operational issues and maybe the following day or soon thereafter, he could arrange for the Minister to come and engage with issues that were in his purview. Fifteen minutes would only allow two or three Members to ask questions and receive full engagement. He suggested that the Departments and the NPA presented full details to the Committee and Members would engage with the Minister another time.
The Committee agreed.
Adv Shamila Batohi, Head, NPA, informed the Committee that she had prepared a presentation but had been told she would not present. The DoJ&CD would present. She was happy to follow the guidance of the Chairperson.
Co-Chairperson Magwanishe determined that Members should ask questions and the two Departments and the NPA would respond to the questions.
Mr X Nqola (ANC) asked, with regards to Correctional Services, whether keeping social distance in an overcrowded centre was possible, although he acknowledged that the Minister had touched on that point. Having identified sources of inmate and staff infections, what was the Department doing to ensure there was less infection at level 4 by providing the necessary material? Regarding court administration, he was concerned about the further opening of services that were not open at Level 5. At Level 4, was the public allowed to attend matters in court or not as was the current situation? Lastly, the report spoke about the bail applications and first appearances, etc. Was the NPA ready with personal protection equipment (PPE) for prosecutors?
Adv Mohammed noted that a number of police stations had been closed because officers had tested positive for the Corona virus. He informed the Minister that in those police stations, the domestic violence interdicts were not being served and contraventions of the interdicts were not being addressed. He requested that the Magistrates be informed which police stations were unable to execute the orders. Secondly, he noted that the regulations for Lockdown Level 4 would be announced that night and asked the Minister, at his next meeting with the Committee, to brief Members of the implementation plan for Level 4. Lastly, he asked the Acting DG how many Justice service points had been cleaned.
Adv Swart noted that the regulations and the lockdown had had a very severe impact. He asked the Minister to comment on the need for the curfew from 8pm to 5am. The Department had had oversight of the regulations: were the regulations constitutionally compliant? He asked whether TB and HIV/AIDS was being looked into at the same time as Correctional Services was focusing on Covid-19. He understood the need for the lockdown but he was looking forward to a consideration of the broader issues in the nation.
Mr Motsamai asked the Minister about the security of inmates at Baviaanspoort and the use of masks.
Minister Lamola agreed with Mr Nqola that social distancing was impossible and that the only remedy was cleaning, washing hands and screening officials when they clocked in. It was not possible to test all officials every day. The Department was still attending to TB and AIDS cases as and when there was a need. The WHO had indicated that such people were vulnerable and so the Department was looking at protecting them, specifically those that had co-morbidities.
In respect of the problems arising from police stations that were closed, he would follow up on that matter. Regarding Baviaanspoort, the Minister was seeking further information about what had happened there and what the conditions were. The Commissioner could respond more appropriately.
Co-Chairperson Magwanishe raised a concern about lawyers who were awaiting payment from state-owned companies, including state attorneys, who fell under the Minister’s office. He asked that the Minister look into them getting paid urgently. They would not be able to survive during this period. He asked that other Ministers, such as the Minister of Public Enterprise, be engaged because quite a number of advocates and attorneys relied on Eskom, Transnet and other entities.
The Minister noted the point.
Adv Mohammed clarified his earlier question: in one police station, there were 43 protection orders had not been served because the station was closed. There were four other police stations that had closed that he knew of. The issue was about protection orders not being served.
Dr Ndlozi asked the Chairperson about procedures during the virtual meeting. After a short discussion, Dr Ndlozi continued. He requested a detailed budget breakdown following the adjustments by National Treasury and how they had affected the Department. The DG should take the Committee through the budget as that was one of the most important issues. He required a procurement breakdown. One did not get a sense from the Minister’s presentation of the number of PPEs that were to be procured, where they would be procured, etc. He asked that the Department took the Committees through its procurement processes. He was aware that procurement regulations had been adjusted by National Treasury.
As far as social distancing was concerned, Dr Ndlozi believed that the Minister’s response was laissez-faire. Was Correctional Services reorganising the prisons in the light of the social distancing requirements and, if so, what were the details? Was the Department isolating the inmates at risk, including those who were vulnerable and had Tuberculosis, HIV/AIDS and the older ones? What regulations was the Department putting in prisons in respect of social distancing? The need to expedite cases was of paramount importance. There had been a lot of domestic violence. If people were forced to stay at home, how were cases of domestic violence and rape, etc. prioritised? Eviction cases had been widely reported, including the Red Ants in Johannesburg, regardless of the fact that there had been a direct stipulation that there should not be any evictions. Was there a way to expedite the hearing of such cases?
Co-Chairperson Magwanishe gave the Minister the opportunity for making closing remarks.
Minister Lamola informed the meeting that both the DMs, Deputy Minister Nkosi Phathekile Holomisa and Deputy Minister John Jeffrey, would be able to respond as the three of them had attended to the issues together. The issue of the risk adjustment was a Command Council question and he would respond. It related to what would be done in the risk adjustment strategy with medical hotspots. The regulations for Level 4 would be published that evening and the whole country would move to Level 4. Thereafter, having received an etymological report and a DoH report, there would be a sitting to determine the different levels for various provinces, regions and districts in the country. In the next stage, different parts of the country could be at different levels but that would only be addressed in the future.
Co-Chairperson Magwanishe thanked the Minister.
Co-Chairperson Shaikh expressed concern about the gender-based violence reports that had been received. She asked the Department about the status of the Thuthuzela Centres and what safety measures had been put in place in the centres? What measures were in place to ensure that the centres remained accessible during the lockdown period?
Referring to the NPA presentation, she noted that the NPA had indicated various challenges on slide 16. Could the Department provide details of how the South African Police Service (SAPS) had been inconsistent in its application of the regulations and what measures had the NPA taken to address the matter with SAPS? Given the high levels of overcrowding in correctional facilities, how was the DCS managing quarantine and isolation sites? Could the DCS provide a province by province breakdown of isolation sites? She added that the information could be provided at a later stage. How many inmates had been infected with the virus? She accepted that it was with the assistance of DoH but could DCS explain what lessons had been learnt in respect of what had happened in the Eastern Cape? How had those lessons been translated into initiatives to mitigate infections in other provinces?
Looking at court statistics, Co-Chairperson Shaikh noted that there was a high volume of criminal cases. Was that a result of contraventions of the lockdown regulations? What measures had the NPA undertaken to work with IPID in respect of investigations into police officials?
Mr R Dyantyi (ANC) wanted the Minister to take responsibility and not just report and then leave. The further meeting with the Minister was essential. Some of the issues raised by Dr Ndlozi in respect of some of the financial issues that had been announced by the Minister of Finance were not included in the presentation and the Department should provide a report on that. However, he did not want the officials to try and present a report in half measures at that meeting. That would be on the agenda for the following week.
Mr Dyantyi said the DM of Correctional Services had to tell the Minister that in the light of a lack of regular testing, he did not buy the Minister’s argument about prevention. The President had declared no visits to prisons and there was a reason for that. The kind of infections that were now found in prisons had been brought in by officials. The Minister had to bring a plan showing how he was going to screen and test on a weekly basis. If he could not do that, he would have to show how he was going to limit the number of officials who came into contact with the inmates. What about those who were arrested and convicted? What was the Department doing to ensure that they did not bring the virus into the facilities? Simply stopping visitors and not doing anything else to stop transmission and contain the spread of the virus was not enough. DCS had to do more to stop transmission of the virus.
Mr Dyantyi noted that already some very good lessons had been learnt. As a result of the current actions, there had been a reduction in contraband. How did one take those lessons forward?
Mr Dyantyi noted that the Minister had spoken of the success of currently available video conferencing in the courts. He asked the DM and the Department if that was in place? Was it in only a few centres? If it was available, it was a good intervention. Otherwise, the Minister was just making a general statement and that was not good enough.
Ms J Mofokeng (ANC) aligned with the questions of Dr Ndlozi. She referred to the issue of domestic violence. She was not impressed with the report of 8 000 plus calls that SAPS had received as one did not get a sense of what was being reported by the 8 000 plus calls. Recently, a police officer had been killed when going to a house in response to a call. She wanted to know if a domestic violence incident was registered or whether the police just recorded the number of phone calls. She wanted a report per province.
Ms Mofokeng asked about the 19 000 offenders that were to be released. The recommendations were for those who had lighter sentences and people over 65 to be released but look at Bob Hewitt. He has been molesting young women or young girls. It was not possible to let just anyone out because the person was over 65. She asked for a list per province of the prisoners who were being released. One could not simply release people because the prisons were full. They could even infect their families. Was there a plan for inmates to be quarantined before being let out? If not, the country could go back to Level 5. She did not see much about Mangaung Private Prison which had gangsters, etc., but it was not included in the report. It was part of the Committee’s oversight because the prison was funded by government.
Mr W Horn (DA) also had a question on the inmates who had been released the previous Monday. Could the Committee be appraised as to what, on average, percentage of the sentences had been served and the average months left of the sentences. What due diligence had been undertaken by the Department to ensure that all 19 000 had a home to go to, given that everyone had to remain at home during the lockdown? Or, where there were inmates who did not have a home to go to, had the Department ensured that they could be accommodated in shelters for the homeless?
He had noted that the instability in the KwaZulu-Natal (Correctional Services) regional office was still a concern. The Regional Commissioner had been dismissed, restored to office by court and then the media reported that the National Commissioner had been involved in seeing that the Regional Commissioner did not take up his seat. Why had the National Commissioner barred the Regional Commissioner from taking up his seat? As a Committee, Members should be worried about that state of affairs. SA was a country in which the rule of law had to be upheld. He asked that the National Commissioner appraise the Committee as to the reasons for barring the Regional Commissioner from taking up his seat.
Mr Horn added his voice to the concern about quarantine facilities. From the presentation, it was quite clear that certain regions, such as the Free State/Northern Cape region had done nothing much about quarantine facilities. Luckily there had not been an outbreak in that region but the Committee needed answers as to what would happen in respect of those facilities.
Regarding the DOJ&CD, Mr Horn found the presentation, at best, very sketchy. There was a possible saving of R200 million but Members were not given any idea of where the saving would come from. What was the status regarding court cases as a result of the lockdown? What was the status of the backlog roll and if civil cases were enrolled or re-enrolled, how many months would civil trials take to proceed? Parliament needed to have a proper understanding of the state of the justice system.
Adv G Breytenbach (DA) understood that Minister had had to go but she agreed with Dr Ndlozi that it was most unsatisfactory. It was the first time that the Committee had met in more than a month and there had not been an opportunity to really engage with the Minister. The Committee really needed such an opportunity.
Adv Breytenbach had been covered by co-Chairperson Shaikh on the issue of gender-based violence. She was not satisfied with the NPA presentation. It was disappointing. She understood that everyone was busy at the moment but work had been scaled down for five weeks and the entity could have provided more information. In terms of cases: 22.1% cases remained in custody; 32.6% of cases released on warning; 16.1% released on bail; 29.2% of cases were disposed of. How were they disposed of? What did it mean? How many cases were flowing through the system that were not new cases relating to the state of disaster? Were cases flowing? How were court officials being protected and what did they need?
Adv Breytenbach was concerned about the issues relating to network interruptions on the justice system. What was the DoJ&CD doing to address the issue as it was hampering the NPA in its work? Had any engagement taken place between the NPA, SAPS and the Judiciary with regards to the inconsistencies in the application of the regulations and what had been done about it? Inconsistency was a mortal enemy in law and she wanted to know what was being done about it. Why was there an increase in cases not enrolled due to insufficient evidence and what was being done about that? The NPA complained about a lack of consistency in the approach by the NPA across the country. How was that being addressed? That was in itself untenable.
Adv Breytenbach noted that DCS spoke a lot about screening but screening was superficial and did not mean a thing. Was DCS doing testing? She requested a schedule of prisoners who had been released, what offences they had been convicted of, the length of the sentences and how much of the sentence had been served? Were they screened or tested before being released? Who would monitor the released prisoners as Community Corrections was understaffed and could not do it? Were they repeat offenders or first offenders? Had they previously been up for parole or early release and what had been the outcome of that process? Where would the released prisoners go if they did not have a home and who would arrange accommodation? She had many more questions but she would save them for the next interaction.
Co-Chairperson Shaikh informed the Committees that Mr S Du Toit (FF+ North West) was not a Member of the Select Committee but he could attend as he was a Member of NCOP. She asked that he be permitted to pose a question if time allowed at the end. There was a protocol that he knew he had to follow.
Mr Du Toit pointed out that legal counsellors were not allowed to go to their offices and had only been able to attend court when a permit was issued. That had impacted seriously on the vulnerable citizens who did not have access to legal assistance. Were legal practitioners going to be allowed to attend to their offices and have access to clients without having to obtain permits first? Secondly, what was being done about the prescription of civil claims? Would there be an amendment to legislation to address the prescription of such claims?
Mr J Selfe (DA) informed the Chairperson that all his questions had been covered by his colleagues.
Mr E Mthethwa (ANC KwaZulu-Natal) was concerned about the statement by the NPA that some cases were not enrolled due to insufficient evidence to secure a conviction. How was that possible? What plan did they have to address such challenges?
Co-Chairperson Magwanishe requested the DMs and officials to respond.
Deputy Minister Jeffrey noted that Mr Nqola had enquired about the attendance of the public in court. Courts would open at Level 4 on 4 May 2020 and the number of matters that would be dealt with was being extended. However, the process would remain the same in that people would not get entry to the courts. People would only be let in if they had business in the courts, as was currently applicable. A support person and the media could also access the courts. There was a need to reduce numbers because a lot of the public galleries, particularly in magistrates courts, were very small. The directions would generally remain the same.
The Deputy Minister assured Adv Mohammed that in terms of the orders relating to domestic violence, he would follow up with the police regarding interim orders that were not served. He would have to come back to the Committee with regard to the use of Audio-Visual Remand technology but he mentioned that some Members might have seen the virtual court in Port Elizabeth that was shown on YouTube.
Regulations would be issued that evening following a media conference at 18:00. Thereafter there would be directions from the Minister that would attempt to make it easier for legal practitioners to do their work but it had to be remembered that the country was in a partial lockdown and it was not as if everyone could go around freely. Concerning the issue of civil claims and prescriptions, he explained that amendments could be drawn up if necessary, but the Act did allow that the court could allow matters to proceed if there were good reason for the prescription having been reached, and the current situation was a very good reason.
Adv JB Skosana, Acting DG, DoJ&CD, stated that his Department would prepare a full presentation in response to the questions raised by Members. He had been fortunate to be part of the drafting team on the regulations. Additional matters for the courts were the limited trials, i.e. trials limited to corruption, sexual offences and gender-based violence, contravention of the Covid-19 regulations as well as cases where the accused was held in custody. During the lockdown, there had been no lower court trials but only postponement of cases, bail applications and the issue of protection orders. That meant that there was a little extension of cases in an attempt not to increase the backlog after the period of lockdown.
Adv Skosana informed Members that departments had been requested to indicate the amount to be made available in each department for the Covid-19 Response budget. DoJ&CD had identified R600 million from projects which would not be undertaken due to the delay in the start of the new financial year. He hoped that R200 million would be recouped. Full details would be provided by the CFO in the Department’s presentation.
Adv Skosana informed Adv Mohammed that courts were disinfected if someone in a courtroom was detected as, or suspected of, being infected by the virus. Approximately 30 courts had been sanitised do far: Limpopo – 15, Gauteng – six, Eastern Cape – two, KwaZulu-Natal – one, Northern Cape – one, North West - one. The numbers kept changing. The number of staff in the courts had been limited but that number would be increased under the Level 4 regulations. All heads of institutions had to develop a plan for social distancing and adherence to Covid-19 protocols. The regulations would continue to outlaw evictions – the execution of evictions would be suspended for Level 4. There would be further restriction of the movement of people during Level 4.
He informed Members that there was no videoconferencing in the courts but the Audio Visual Remand system was used between courts and correctional centres. The system was only being used for the postponement of cases. Part of the initiative that would unfold would be to use CCTV for virtual participation. DoJ&CD was still in the early stage of developing those systems but had been pushed forward by Covid-19.
Adv Batohi informed Members that Adv Karen van Rensburg, Acting Head of Administration would address the issue of PPEs and Adv Rodney De Kock, Acting Head of the Prosecuting Service, would respond to the questions on cases in court and domestic violence.
Adv van Rensburg explained that PPEs had been supplied to the lower courts. Initially, there was a shortage of supply as there were no sellers but the NPA had received supplies that day. In the interim, courts had been given permission to use petty cash to purchase PPEs, particularly from local suppliers. Two cloth masks were being provided for every person. For the following five months, each person would receive a box of gloves and sanitiser. The NPA was working closely with DoH to procure shields for frontline offices. Mr Johnson of DoJ&CD, who was in charge of the lower courts, was managing the process and issuing instructions regarding washing of hands.
Adv van Rensburg said that R10 million had been set aside for PPEs. DoJ&CD was procuring temperature scanners for the lower courts and the NPA was procuring the same scanners for DPP offices. However, suppliers were struggling to procure the required numbers and they might not be available by Monday 4 May 2020. That would impact on who was allowed into the court buildings but many people were working remotely and did not need to go in. The NPA would be responding to a parliamentary question on the cost per PPE, per province, and who the NPA had procured from. The information was being collated and that response would be ready by 11 May 2020 and also made available to the Committee.
Adv De Kock responded, firstly, to questions on the prosecution. When the lockdown was declared, the NPA had to ensure the safety of prosecutors’ court personnel and in the spirit of the lockdown regulations, to minimise the number of people that accessed the court buildings. The Minister had issued directives and the NPA had complied with those directives. The majority of cases processed during courts during the lockdown were postponed in line with the directives. Slide 15 of the NPA presentation gave a breakdown of the number of cases finalised, decision dockets that came into the courts, cases struck off the roll, warrants of arrest and cases withdrawn.
Adv De Kock explained that slide 17 did not speak to inconsistent application by the NPA but spoke to the manner in which accused people were processed through the courts: that was inconsistent. The dominant trend in the courts was to postpone cases so when the accused arrived in court, cases were postponed in courts in the presence of the accused, often through the use of the audio visual remand system, but some were postponed in absentia, although that was a minority of cases. Where cases were postponed in abstentia, a warrant of arrest was issued. In a few offices, the chief magistrate determined that no one could access the courts so the accused were turned away before accessing the court building. The slides were only relevant to those cases that related to the Disaster Management Regulations. The statistics were intended to provide direction to the decision makers regarding what was happening on a daily basis in the court environment. Prosecutors reported daily on activities. It gave an understanding of the efficacy of the measures taken to minimise the risk of people coming into contact with the disease and to ensure the safety of all persons and officials.
Adv De Kock informed the Committees that all the Thuthuzela Centres were open and all services were available. There was a reduced number of staff at the centres but when services were required, they were all made available. All centres were and would continue to be operational.
He pointed out that in respect of the priority of offences, a decision had been taken that all trials would be suspended, except for urgent and essential matters. Priority offences included GBV offences, sexual offences, transgressions of the Disaster Management Regulations, corruption cases and serious violent crimes such as assault and murder. The cases would be determined by the Senior Public Prosecutors on site and they would attempt to ensure a minimum of people came into contact with others. Decisions would be made together with the Judiciary. He added that the NPA had a standing arrangement with the Independent Police Investigative Directorate (IPID) and with Public Prosecutors in each province. Any cases important to IPID could be dealt with immediately.
In respect of SAPS and the inconsistent application of regulations, Adv De Kock explained that that had occurred mostly in the early stages of the lockdown. It was understandable as it was a completely new process. Prosecutors were present in Joint Operational Centres in each province so that matters of inconsistency could be addressed immediately. At the National Command Centre two prosecutors could address issues that arose in the regions. That ensured an effective communication between the national level, regional and local levels. The system had been effectively managed. Most of challenges encountered in the early stages had been addressed. It was important to understand that the situation had come upon the NPA very suddenly and the NPA had done its best to address the challenges while minimising the number of prosecutors that were required to be present and on duty.
In response to the question on the NDPP’s concern about insufficient evidence, Adv Batohi stated the situation had occurred in 30% of cases, which was a high number, and it had increased in the past week. The NPA was investigating why there was insufficient evidence. It might mean that further explanations might have to be given to SAPS in terms of what the regulations required.
Deputy Minister Nkosi Holomisa agreed that social distancing was almost impossible in correctional facilities. DCS had always been complaining about the lack of money for more centres so the only thing that it could do was to prevent infections. Inmates were going out for exercise and meals in batches so that they could remain two metres apart. On a regular basis, officials entering the centres were screened and sanitised and given face masks and they were given gloves for when they dealt with inmates. There were sanitisers in each cell and inmates were provided with face masks. Province by province information would be provided soon. A detailed financial statement would also be provided at a later stage.
Deputy Minister Holomisa stated that the infections in the centres so far had been brought in by new detainees and officials. New detainees were put in isolation and were screened and tested if they showed signs of the virus. It was the desire of DCS to test all but the priority was screening and testing, where necessary, because of the scarcity of resources. As Mr Dyantyi had said, there had been a marked decrease of contraband and smuggling because of the daily sanitation of the cells, and that had been a good lesson. People already inside facilities when the Covid-19 had broken out were safer than those coming in, such as remand detainees, hence the quarantine for those coming in.
Deputy Minister Holomisa stated that a list of 19 000 inmates who would be suitable for release would been presented to the President and he would make the final decision. Inmates that were vulnerable – those infected with HIV/AIDS and Tuberculosis - were given special attention.
He presented a provincial breakdown of those in the Correctional Services who were infected with the virus.
-Male officials: Gauteng – two; Western Cape – 26.
-Female officials: Gauteng – one; Western Cape – nine, Eastern Cape – 29, Limpopo/Mpumalanga - two, head office – one
-Male remand detainees: Gauteng - seven
-Female remand detainees: Western Cape – one, Eastern Cape – one
-Sentenced male inmates: Western Cape – one
-Sentenced female inmates: Eastern Cape – 55
The correctional centres affected were: Kgosi Mampuru II Local Remand Centre – seven remand detainees, Johannesburg Medium -one male official, Modderbee – one male and one female official, Warmbokkeveld Gevangenis – 19 male inmates, 5 female inmates and 24 officials, Worcester Central – 2 male inmates, 3 female inmates and 5 officials.
The Deputy Minister commented that there were so very many prisons that he did not think that he should take the time to go through all. Further details would be provided by the National Commissioner.
Co-Chairperson Magwanishe asked the Commissioner, on behalf of Mr M Hendricks (Al Jama-aha), whether Muslim prisoners were allowed to perform evening prayers before breaking their fast.
Mr Arthur Fraser, National Commissioner, DCS, stated that he would make a detailed procurement breakdown available at the next sitting. The budget was work in progress. National Treasury was busy with re-prioritisation so DCS as awaiting the finalisation of that process. No adjustment budget had been proposed at that stage.
Regarding Mangaung private prison, as part of the strategy of DCS, the Department had established task teams at national, regional and local/district levels. They were linked to the disaster management structures. Incidents that could lead to Covid-19 situation were reported on a daily basis. Private prisons were not part of the national war-room but reported daily to the regional operational centre.
The Commissioner confirmed that there had been an incident at Baviaanspoort facility. The incident was under investigation and a report was expected by the following day. As part of the prevention strategy, the Department had embarked on a daily sanitisation and search of cells in all facilities. The offenders in Baviaanspoort had resisted the search and that had resulted in the unfortunate situation and that situation had been exploited by Golden Miles Bhudu (of the SA Prisoners Organisation for Human Rights). The prisoners had been exploited but the Commissioner could provide full details post the final report. The termination of visits had impacted on the smuggling of contraband and the DCS had anticipated the impact of the restriction of tobacco and drugs.
He stated that screening took place daily and to date a cumulative total of 509 000 persons had been screened. The Department had digitised the screening process in order to track this.That process was in its first week. DCS was able to add co-morbidities to the system and so look at the risk profile of both offenders and officials but, because of privacy laws, the Department could only track the risks to officials where officials were prepared to share health issues. DCS had the full record of all offenders and so had added that data to the system. He acknowledged the challenge of symptomatic and asymptomatic persons.
The Commissioner stated that the lessons learnt had resulted in the development of Standard Operating Procedures (SOPs) for everyone on DCS premises. DCS had finalised 23 SOPs after they had been scrutinised by two sets of medical professionals. He read the list of SOPs which was not included in the presentation.
1.Maintenance of partnerships at various levels and reporting on efficacy of partnerships.
2.Training of healthcare officials and other staff to ensure good communication.
3.Preventative strategies: awareness, sensitisation and sanitisation.
4.Entrance and release programme.
6. Resources – finance for procurement of PPEs.
7. Control between police and various centres.
8. Guarding and escorting.
10. Protection of inmates from Covid-19.
11. Psycho-social services.
12. Quarantine and isolation.
13. Case identification.
14. Transportation of cases to quarantine sites.
15. Management of confirmed cases.
16. Handling of babies.
17. Notification of identified cases.
19. Contingency plans.
20. Contact and tracing.
21. Handling of healthcare and medical waste.
22. Disposal of human remains.
23. Recording and reporting.
The Commissioner hoped that by listing the SOPs and presenting the subsequence plans (on the slides), he would be able to give Members a sense of what the Department was doing to ensure the safety and well-being of officials and offenders.
Regarding the Regional Commissioner of KwaZulu-Natal, Commissioner Mnikelwa Nxele, the matter was sub judice. The Special Investigating Unit (SIU) report was with the President and referral was made to the Department to implement disciplinary processes which it had begun. As part of his fiduciary responsibility as the National Commissioner, it was important that he protect the interest of the Department at all times.
The SOPs was a response to the East London facility that had caught DCS flatfooted as it had occurred right at the start of lockdown and had emanated from an official who had attended a funeral. It appeared that the same situation pertained in the Western Cape where an official had attended a funeral in Ceres and the contamination had spread. That matter was still under investigation.
He concluded that all processes were evolving and the Department was keen to receive any advice as it wished to ensure the safety of everyone.
Deputy Minister Holomisa stated that he had given incorrect information and asked that it be noted that the majority of inmates who were affected were sentenced offenders. There were 55 in East London, etc.
The National Commissioner added that as far as Muslim prisoners were concerned, the breaking of the fast was respected and facilities for prayer were available.
Co-Chairperson Magwanishe invited further discussion.
Ms Z Ncitha (ANC Eastern Cape) noted that the NPA had said that only certain cases would be handled during the lockdown. Were there mitigations in place to deal with the issue of the backlog? She was also concerned about the overload for prosecutors. Were there mitigations to deal with the overload for prosecutors, especially as there would be additional cases relating to the disaster management during and after lockdown?
Adv Mohammed proposed that, given that the Minister had said there would be a roll-out of the AVR system, research was necessary to determine whether AVR could be used for pleading, if all parties agreed to it, in the near future. Currently only postponements were being done via AVR. He did not know if the Chief Justice or Law Commission or any other body was looking at it. Maybe the NPA should consider the use of AVR in the near future, at least for pleadings, if not for trials.
Co-Chairperson Magwanishe agreed that the use of the AVR should be included in the Committee’s oversight in the future.
Dr Ndlozi stated that it was obvious that the Committee required a second meeting to take care of the detail requested. He wanted to criticise the strategy of screening as absolutely useless or futile as scientific research had shown that some people were asymptomatic to Covid-19 and yet they were able to pass it around. The asymptomatic aspect was unique to Covid-19 and that made screening a waste of time. The New England Journal of Medicine recommended testing based on US studies in homes for aged people where the majority of the people, including the nurses, had the virus but showed no symptoms. Some of the deaths were coming from those centres. The screening would lead nowhere, especially in centres where there were masses of people. Covid-19 did not show its symptoms. The prisons were incubators of the virus. There had to be a complete rethink to prevent the total infection of prisons. Incremental mass testing had to be done where cases had been detected. That was his basic criticism around the prison system. There would be a lot of deaths in prisons in the next few months and DCS would find itself in the same situation as those countries reporting high numbers of fatalities.
Co-Chairperson Magwanishe commented that that was a difficult issue. The DoH would also have to engage with that issue.
Mr Dyantyi stated that Dr Ndlozi was raising an important but general point as it was not a DCS issue. What was important was the data. Screening, testing and anti-body testing were universal things but each country had to go step-by-step. Screening was never intended to be the only system. The screening had to lead one to testing, where necessary. The health workers referred people for testing. Screening was only one form of testing but he did not wish to engage in that discussion at that time.
Mr Dyantyi appreciated the responses of the Deputy Ministers and officals. He believed that in the future, as part of the Covid-19 response, the Committee should have some joint sessions with the Portfolio Committee on Police. The Committee was “oversighting regulations” and the Portfolio Committee on Police played a particular role in those regulations so it would be good to deal with all aspects in one session.
Mr Dyantyi suggested that Deputy Minister Jeffrey and his team should come back and tell the Committee about the virtual initiatives, especially in the sexual offences courts, because there were a lot of lessons to be learnt as to how things could be done differently.
Mr Motsamai asked the National Commissioner to explain why certain members working in Correctional Services had been suspended. The members who had exposed corruption had been suspended for exposing corruption but then they had been given permission by the courts to go back to prison and work. Those people should not be suspended but had to go back and work.
The Chairperson suggested that Mr Motsamai’s question should be followed up by the Correctional Services Sub-Committee. There were issues of corruption that had been raised, especially at Modderbee Prison.
Mr Dyantyi agreed to do so.
Deputy Minister Jeffrey asked the NPA to respond to the question of the overload for prosecutors as posed by Ms Ncitha. He added that the justice system already had backlogs but could not work extra hours to catch up as there were a limited number of people who could enter the courts and there were disruptions when a person in a court tested positive. The court system was highly inefficient and there was a lot that could be improved upon. The situation presented a challenge to develop a more efficient court system.
Deputy Minister Jeffrey explained that amendments to the AVR system were made in terms of statute amendments to the Criminal Procedures Act. The DoJ&CD would look at that. He would be interested in the comment of the NPA. Presiding officers would also have to be engaged. Virtual court cases would be easier in civil cases where the parties could agree rather than in criminal cases where the accused had rights. But, definitely there would have to be statutory amendments.
Regarding the virtual aspect of court proceedings, it was virtual only in the sense that testimony was relayed from a room, usually just off the court, but one had to be a lot more careful with visual evidence in criminal matters.
Adv Batohi agreed that the backlog situation in the courts would become very, very serious. Some initiatives would be necessary, even Saturday courts. All role players in the court system would have to consider solutions. There had been an increase in certain crime types and the NPA expected to see an increase in crimes relating to poverty and to women and children. The NPA had to determine how to make sure that those cases could be addressed in a compassionate way. Alternate Dispute Resolution mechanisms should perhaps be formalised so that they could be used. There were huge challenges as a result of Covid-19 but there were also massive opportunities. It was forcing people to leave their comfort zones and to rethink things and become innovative. The moment should be seized to examine how the court system could better use technology. The JCPS (Justice, Crime Prevention and Security) Cluster was looking at the post-Covid-19 economic recovery and had identified certain catalytic projects that would have a huge impact on the revitalisation of the economy after Covid-19. One project was the integrated justice system that would now get the boost it needed to force a change in the criminal justice system.
Adv Batohi pointed out that there had been corruption cases before Covid-19 and already there had been reports of cases in SAPS related to corruption as people were putting their hands in the cookie jar of relief funds proposed by government and so plans had been developed that week by the NPA, SIU, FIC, etc to deal with the corruption immediately and efficiently. The good thing was that it was not corruption from years back. A command centre would be established in the financial intelligence centre to ensure an immediate coordinated response and joint reporting to the Command Centre. She would report further in future sessions.
Co-Chairperson Magwanishe agreed that the Committee should look further at the innovative suggestions.
Deputy Minister Holomisa agreed that screening was not the be-all and end-all of it. The ideal was to test everyone and DCS was working closely with DoH to ensure that massive screening and testing took place. At the moment, DCS was concentrating on Kgosi Mampuru II Local Remand Centre, Johannesburg Medium, East London, Pollsmoor and Durban-Westville and then it would be rolled out to all centres.
He was aware of the accusations of corruption by Correctional Services members and the Department was looking into it as it was very serious and not limited to what one read in the media. The corruption was internal and was a concern to the Department.
Co-Chairperson Magwanishe thanked Members for their patience and the Ministers and Departments/NPA for the responses and the work being done. The Sub-Committee on Correctional Services would go through the SOPs in detail and determine how watertight they were. The Commissioner had given a high level briefing on the SOPs but the Sub-Committee had to go into detail. He would engage the House Chairperson to arrange another slot, preferably a morning slot, to deal with the remaining issues. The meeting had covered a lot of ground in respect of operational issues but there were many other issues that Members would love to raise with the Minister.
The secretariat would communicate with Members regarding details of the next meeting.
The meeting was adjourned.