ATC120315: Report Judicial Inspectorate for Correctional Services 2010/11 Annual Report, dated 15 March

Correctional Services

Report of the Portfolio Committee on Correctional Services on the Judicial Inspectorate for Correctional Services 2010/11 Annual Report, dated 15 March 2012

 

The Portfolio Committee on Correctional Services, having considered the 2010/11 Annual Report of the Judicial Inspectorate for Correctional Services, reports as follows:

 

1.         INTRODUCTION

1.1        The Judicial Inspectorate for Correctional Services’ (JICS) 2010/11 Annual Report was tabled and referred to the Portfolio Committee on Correctional Services (the Committee) on 26 October 2011.

 

1.2        Chapter IX of the Correctional Services Act (Act 111 of 1998) provides for the establishment of the JICS. According to section 85(1) the JICS is an independent office, managed by the Inspecting Judge. Section 85(2) provides that the JICS should facilitate inspections of correctional centres in order for the Inspecting Judge to report on the treatment of inmates, as well as on conditions of incarceration.

 

1.3        The JICS’ vision “to ensure that all inmates are detained under humane conditions, treated with human dignity and prepared for a dignified reintegration into the community”, is informed by the DCS’ strategic principles, outlined in the 2005 White Paper on Corrections in South Africa (White Paper).

 

1.4        The JICS’ 2010/11 activities were informed by the following strategic objectives: the acquisition of accurate and reliable information regarding conditions in correctional centres, as well as the treatment of offenders, and facilitating inspections to assess the above conditions and treatment; the maintenance of an independent complaints system; the prevention of human rights violations; the promotion of community involvement in correctional matters; the raising of awareness about the JICS’ activities; and the practice of good governance principles.

 

1.5        Though public comment on the annual reports of the Department of Correctional Services (DCS) and the JICS, as well as briefings by the DCS and JICS on their performance, form an integral part of the Committee’s interrogation of annual performance, the late tabling of the JICS’ Annual Report, and that the tabling occured after the expiry of Judge Deon van Zyl’s term as Inspecting Judge, resulted in the Committee having to abandon this valuable part of its preparatory work. The Committee’s consideration of the report therefore comprised only a research analysis of, and deliberations on its content, which took place on 15 February and 15 March, respectively.

1.6        This report comprises an overview of key aspects related to the JICS’ operation and execution of its mandate, as well as the Committee’s recommendations.

 

 

2.         KEY OBSERVATIONS EMANATING FROM THE JUDICIAL INSPECTORATE FOR CORRECTIONAL SERVICES’ 2010/11 ANNUAL REPORT

 

2.1        Relationship with the DCS and its Executive

2.1.1     In 2009/10 the JICS had lamented the DCS’ failure to acknowledge and respond to JICS reports. The Committee had registered its concerns about the apparently strained relationship between the JICS, and the DCS and itsExecutive. In response, the DCS presented its measures for improving the relationship, It is noted that one year later, the Inspecting Judge in his foreword to the 2010/11 Annual Report, states that the relastionship had “vastly improved”, and that the appointment of a new National Commissioner, and Deputy Minister had not resulted in any challenges.

 

2.2        Staff establishment

2.2.1     At 31 March 2011 the JICS had a staff complement of 44 permanent staff, and approximately 203 independent correctional centre visitors (ICCVs), who are independent contractors.

 

2.2.2     The Correctional Services Amendment Act (Act 25 of 2008) provides for a number of amendments to the JICS’ staffing and structure, including the appointment of a chief executive officer (CEO), appointed by the National Commissioner for Correctional Services (National Commissioner). Though this post was created and funded in the year under review, it had not yet been filled at the time of reporting.

 

2.2.3     As in previous years, ICCVs appointed in the year under review were appointed on contract by the Inspecting Judge. Once appointed, the CEO will appoint permanent staff and ICCVs in consultation with the Inspecting Judge,

 

2.3        Expenditure

2.3.1     According to section 91 of the Correctional Services Act the DCS is responsible for the JICS’ expenses. In the year under review the JICS’ spent just over R20.26 million, approximately R1.16 million more than in the previous financial year, and about 0,16% of the DCS’ total budget. As in the previous year most of the JICS’ budget went towards the compensation of employees.

 

2.3.2     As the JICS is not a department, was not established in terms of the Cionstitution , and is not a public entity as defined by the Public Finance Management Act (PFMA), its expenditure is not subjected to a separate audit, but is audited as part of DCS’ financial statements.

2.3.3     The JICS, on the Committee’s recommendation that the feasibility of an independent budget and audit should be explored, held discussions with the Independent Complaints Directorate (ICD) which has similar functions as those of the JICS. It was found that despite the occasional inconvenience associated with its financial dependence on the DCS, the JICS’ financial independence would demand operational and structural changes which would best be explored upon the ratification of the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), to which South Africa is a signatory. The rights and powers of the national preventative mechanism, which must be established upon the ratification of the OPCAT, are similar to those already afforded the JICS and its ICCVs. Should the JICS have to assume additional functions, changes to its financial structure would be required.

 

2.4        Inmate complaints

2.4.1     ICCVs have access to any part of a centre, and any documents relevant to the execution of their duties. They regularly visit correctional centres, interview inmates, and record and monitor the resolution of complaints received. As they have no power to force heads of correctional centres (HCCs) to cooperate with them, ICCVs mainly operate as mediators and facilitators, ensuring that complaints are resolved amicably.

 

2.4.2     In the year under review some progress was made in addressing some of the systemic difficulties generally encountered by ICCVs. These interventions will go a long way towards improving the JICS’ resolution of complaints.

 

2.4.3     Where Visitors’ Committees have been established, ICCVs must meet quarterly to consider unresolved complaints, which, if not resolved at that level, are referred to the Inspecting Judge. In November 2010 the Committee recommended that the JICS report on the number of complaints referred to Visitors Committees, and the number of matters resolved through the Inspecting Judge’s intervention. As this recommendation came virtually at the end of the 2010/11 financial year, the recommendation will only be implemented from 2011/12.

 

2.4.4     The JICS reported that the overwhelming majority of complaints received in the year under review related to communicating with families, transfers and health care. Access to health care is of particular concern: health-care related complaints have increased by approximately 255% since 2007 (39 868 such complaints were received in the year under review).

 

2.4.5     The JICS interprets the increased referral of complaints from bodies such as the Office of the Public Protector (OPP), the Public Service Commission (PSC), the South African Human Rights Commission (SAHRC), and Parliament as an indication of growing confidence in the JICS’ ability to execute its mandate.

 

2.5        Inspections

2.5.1     The Inspecting Judge and JICS officials conduct correctional centre inspections. The JICS had in previous reports and submissions commented on the negative impact the two-shift system has had on the conditions of incarceration and treatment of offenders. Offenders’ access to rehabilitation and other programmes integral to the correcting of their offending behaviour and their ultimate reintegration is but one of the critical areas affected by the DCS’ failure to resolve challenges associated with the system. Along with assaults, medical and specialised mental health care, infrastructure and maintenance, the unresolved shift system remains an area of concern.

 

2.6        Community involvement

2.6.1     As stated in the White Paper, the correcting of offending behaviour is a societal responsibility. The ICCVs and Visitors Committees play a vital role in promoting awareness and interest in correctional matters. ICCVs are nominated by their communities, and must have a history of community involvement.

 

2.6.2     Towards the end of 2010/11 the JICS conducted a survey of the nature and extent of ICCVs’ community in involvement.  The survey revealed a relatively high level of community participation. Some Visitors Committees held fruitful stakeholder hearings aimed at creating public awareness, and addressing some challenges that call on cooperation from amongst others, Legal Aid South Africa (LASA).

 

2.6.3     Community organisations emphasised their commitment to assist the DCS by rendering services that meet inmates’ needs. The impact of community involvement has to however been difficult to assess, as no specific methods of monitoring and evaluation have so far been applied.

 

2.6.4     The JICS welcomed the DCS’ commitment to establishing uniform norms and standards for non-governmental organisations’ involvement in the rendering of services to inmates. This will assist the JICS in providing guidelines for community involvement, thus making greater monitoring and evaluation mentioned above, possible.

 

2.7        Transfer of inmates

2.7.1     As in previous years, complaints relating to transfers requested owing to the prevailing conditions in correctional centres were the most common in 2010/11. The JICS remains concerned that many such complaints are not resolved.

2.7.2     Many inmates alleged that they were being transferred as a punishment for bad behaviour, or in order to prevent their participation in investigations in which officials might have been implicated. These allegations motivated the JICS to conduct a survey to establish how transfers were managed generally. ICCVs conducted structured interviews with 185 HCCs, and 2 005 inmates, across 194 centres,

2.7.3     The survey revealed that those who had requested to be transferred, waited on a response for on average 7 months. Of the 1 634 inmates who have been transferred, 868 claimed that they did not request to be transferred. In 516 instances, HCCs had allegedly not provided reasons for transfers. In 920 cases inmates’ families were not informed of their transfer, and in 483 cases the transfers resulted in inmates not being able to continue social or education programmes they were participating in.

 

2.8        Death in correctional centres

2.8.1     The JICS acknowledged improvements in the DCS’ investigation of deaths. Unnatural deaths decreased from 55 in 2009 to 48 in 2010. Most of the deaths were reported as suicides. The 8 cases in which officials were implicated, as well as those related to gang activity officials are suspected to have been aware of, are of major concern.

2.8.2     The Annual Report does not indicate how many natural deaths were reported in 2010/11 financial year. An assessment of the 916 ‘natural’ deaths reported between 1 January and 31 December 2010, revealed that the majority of natural deaths appeared to occur in the first year of incarceration. This was ascribed in part to inmates being admitted with pre-existing conditions which are not identified on admission, or if identified, not treated adequately.

2.8.3     The JICS reports that three infant deaths at the Johannesburg and Durban Female Correctional Centres had not been reported to it. The failure to report maybe attributed to the DCS’ mistaken understanding that only inmate deaths should be reported.

 

2.9        Segregation

2.9.1     The JICS reported an improvement in HCCs’ reporting of instances where inmates have been segregated: such reports have increased from 5 558 in 2009/10 to 8 155 in the period under review. That only 52 such referrals were received from inmates directly is a cause for concern as it pointed to a possible failure on the part of HCCs to inform inmates of their right to refer segregation to the Inspecting Judge for review.

 

2.10      Use of force and mechanical restraints

2.10.1   Section 32(6) of the Correctional Services Act requires that all instances of the use of force must be reported to the Inspecting Judge. Only 10 such reports were received in the period under review, which the JICS ascribes to the DCS’ ignorance of the legal requirement related to immediately report when use of force has had to be employed.

2.10.2   Section 31(3) of the same act requires HCCs to report any use of mechanical restraints to the Inspecting Judge. In terms of section 31(5) inmates subjected to mechanical restraints may appeal to the Inspecting Judge. Of the 67 cases in which the use of mechanical restraints was reported, only 7 inmates appealed against use of restraints. This may point to inmates’ ignorance of their rights in this regard.

 

3.         RECOMMENDATIONS

The Committee requests that the Minister of Correctional Services (the Minister) ensures that the following recommendations are considered, and where possible, implemented. The Minister should further ensure that responses on their feasibility and/or implementation status reports are submitted within three months of the adoption of this report.

 

3.1        The Money Bills Amendment Procedure and Related Matters Act (2009), provides for, amongst others, a parliamentary procedure to amend Money Bills, thus granting parliamentary committees greater opportunity to influence the allocation of funds to the departments they oversee. Section 5 compels the National Assembly, through its Committees, to annually submit budgetary review and recommendation (BRR) reports on the financial performance of departments accountable to them. Though the above-mentioned Act is silent on oversight over entities, the Committee believes that, given that the JICS receives its budget from the DCS, its performance too should be assessed during the BRR process in October each year. The Committee therefore again calls for the tabling of the JICS’ Annual Report in sufficient time to allow for its consideration during the above-mentioned process.

 

3.2        The correcting of offending behaviour is a societal responsibility. The Committee welcomes efforts to conclude memoranda of understanding (MOUs) with the SAHRC and the OPP, and should be briefed on the content of each agreement.

 

3.3        Corruption not only poses a serious security risk, but compromises the treatment of inmates and conditions of incarceration, thus impacting negatively on rehabilitation and reintegration efforts. Section 90(1) of the Correctional Services Act allows the JICS to not only report on conditions of incarceration and treatment of offenders, but also on “any corrupt and dishonest practices”. The annual surveys performed by the JICS are valuable sources of information, and it is recommended that an analysis of the prevalence and impact of corruption on conditions of incarceration should be explored in the 2012/13 financial year.

 

3.4        Serious concerns about ICCVs’ capacity, and independence remain. Inmates regularly complain that ICCVs either do not visit them, or that they appear to be “working with” warders and correctional centre authorities, rather than assisting inmates in having their complaints resolved. The impression that ICCVs are not as effective as they should be, is further amplified by the volume of complaints forwarded directly to the Committee. The Committee should be provided with the details of how ICCVs are appointed, monitored and assessed, as well as with a list of all ICCVs’ names, contact details and the correctional centres at which they are stationed.

 

3.5        Considering the volume of transfer-related complaints received by the Committee, we concur with the JICS’ assessment that the transfer processes appear to be irregularly applied. The ‘punitive’ and ‘preventative’ application of the process described in the report subverts rehabilitation and reintegration efforts, and those responsible should be held to account. The Committee supports the JICS recommendation that the policies governing transfers, particularly those related to the turnaround time for the consideration of such requests, should be strictly adhered to.

 

3.6        The Committee remains concerned about the JICS ability to perform its oversight functions independently, and effectively. The process of organisational transformation referred to in the foreword is welcomed, despite concerns about the process’ dependence on the DCS’ approval. The Committee should receive regular updates on progress made, and should be kept abreast of challenges experienced in finalising the restructuring.

 

 

4.         ACKNOWLEDGEMENT

The Committee thanks the JICS officials who provided clarity and input during the compilation of this report. Justice DH van Zyl, who authored the report, and whose three-year term of office expired on 31 October 2011 is also thanked for the contribution he made during his tenure.

 

Report to be considered.