RESEARCH UNIT

PARLIAMENT

31 August 2007

Part 2: ISSUES RAISED BY THE PORTFOLIO COMMITTEE ON CORRECTIONAL SERVICES ON THE CORRECTIONAL SERVICES AMENDMENT BILL [B32-2007]

The Portfolio Committee on Correctional Services held a second meeting with the Department of Correctional Services on 31 August 2007 and went through the Bill clause by clause. The following issues were raised at the meeting on 31 August 2007:

(1) Section 52

Concerns raised and suggestions offered:

Why has the court been removed from Section 52(a) and replaced by the Minister?

Why has the 'use' of alcohol been amended to the 'abuse' of alcohol thus allowing people on parole or correctional supervision to use alcohol?

Suggestion: Consistency of application of the law should ensure that all parolees or people on correctional supervision should not be able to drink.

Suggestion: The role of alcohol in crime is a proven fact. The principle should be retained that all people on parole/correctional supervision should not be able to drink any alcohol. This will ensure ease of enforcement as the term 'abuse' is too vague and it will be extremely difficult for the Department to determine when 'use' has turned into 'abuse'.

Suggestion: Both offenders (people sentenced to imprisonment) and parolees or people sentenced to correctional supervision are not free people and thus none of them should be able to use alcohol.

Department:

The Department wants to ensure that conditions are applied to parolees and people on correctional supervision that suit their individual offence. The Department does not want all parolees or people on correctional supervision to be banned from using alcohol at all. Only when alcohol use or abuse is part of the particular offence, should it be included in the parole or correctional supervision conditions.

The law does not state that all conditions should be applicable to all people on parole or correctional supervision.

The use of drugs has also been clarified by specifying that 'illegal' drugs cannot be used.

(2) Section 57

Concerns raised and suggestions offered:

It is proposed that Section 57(5) which deals with the influence of alcohol and drugs be deleted in this Bill. Suggestion: This section should be amended rather than deleted and should reflect that the use of alcohol and illegal drugs is not allowed.

(3) Section 67

Concerns raised and suggestions offered:

Section 67 of the principle Act states that a blood test can be done when there is 'a reasonable suspicion' that a person is taking alcohol or drugs. Explain 'reasonable suspicion'?

What if a person is tested on 'reasonable suspicion' and the test is negative? Can the Department be sued?

Department:

The Department will not make a person test if they do not have a good suspicion of abuse including red eyes, for example. Used by the Department of Transport and thus within the boundaries of the law.

(4) Section 73

Concerns raised and suggestions offered:

The Department needs to explain the need for these amendments.

What is the role of the Committee (Parliament), in approval of this framework? The Committee explained to the Department that notwithstanding their statements that the framework will come before Parliament, all that 73A says is that the framework will be put in the Government Gazette, and that this will not need to therefore come before Parliament and the Committee. Section 134(5) only necessitates that Regulations must be bought before the Committee. Suggestion: If the amendments are agreed upon, then Section 73A must be amended to ensure that it must be passed by the Committee.

Does the Department want these amendments to address overcrowding?

Where is it stipulated that MPs can belong to the National Council?

The Department is arguing that the framework in the Act is too rigid and does not allow for the proper management of parolees and that this is why they need a new framework. The new framework will also need to be relatively 'rigid' as the Minister cannot intervene in all individual parole decisions.

It is not right that this function be delegated to the Minister. This is not an executive function and resides either with the legislature or with the judiciary.

If the 25 years for life imprisonment is scrapped in the Act, it will give hope to offenders who have committed very serious offences that they may be released earlier.

The Department must provide the proper citations for cases cited justifying these amendments.

What was the advice of the National Council (who must have been consulted on this Bill in terms of Section 84( 3) of the Act), regarding these parole amendments? Suggestion: The Department must provide the Committee with the minutes of this meeting with the National Council where this issue was discussed and it must include a list of all people attending that meeting.

If the Committee agrees to these amendments as contained in the Bill, it is tantamount to signing a blank cheque to the Minister, as no indication is given as to what will be contained in the incarceration framework, which may decrease or increase the periods before parole can be considered.

The Minister is the last step for appeal for people who are unhappy with their parole decisions. How can the Minister therefore be a part of the initial decision? Suggestion: The National Commissioner rather than the Minister should be responsible for determining these periods, in consultation with the National Council. The Committee does not agree with Section 73, as it stands.

What is wrong with the 25 year period for people serving life imprisonment in particular? Why does the Department want to change this period?

Department:

The amendment provides the Minister (in consultation with the National Council) with the power to determine minimum periods before a person can be released on parole. Initially this power lay with the courts. It may appear as if the amendment is taking away the power from the courts and the legislature (Parliament) but the need for the amendment is due to:

DCS is constrained by the rigid framework/ period outlined in the Act. The DCS expects that the new incarceration framework will contain more detail then the current framework in the Act and allow a more sophisticated breakdown of crime categories etc.

Improve proper management of parole and enable better planning in terms of the financial and human resource implications as can better forecast growth in the population, release figures etc with a more specific framework.

The stipulated period in the Act (i.e. parole considered after served half the sentence), creates illegitimate expectations of offenders who expect to be released after this period has been served. Some are not ready for release and they sue the Department. This litigation impacts on the financial and other resources of the Department.

Currently, in practice, the court considers recommendations from the parole boards with regard to release. Ensuring that the National Council considers these recommendations is preferable as the National Council includes a range of role-players including judges, legislature, experts, Director of Public Prosecutions, police etc.

Section 73A which refers to the incarceration framework will be brought before the legislature. Thus the Department states that this will actually increase legislative oversight over parole. In addition, the National Council includes judges and can include parliamentarians. This will also ensure continued legislative oversight.

Section 83(2)(h) allows for 4 additional persons, including MPs to sit on the National Council. Currently there are no MPs on the National Council.

The amendment is not trying to address overcrowding. Section 81 can be used for this purpose. There is nothing wrong per se with the 25 minimum period for lifers. The Department wants to develop a better formulated framework for all categories. The 25 year minimum period that must be served by lifers is not necessarily going to be scrapped, it may remain the same or it may change. This will be included in the incarceration framework.

The composition of the National Council includes judges, magistrates, DPP, correctional services, SAPS, social development, specialists and 4 others (may include MPs).

The Department agrees that all frameworks are to some extent rigid.

Botha (Supreme Court of Appeal) decision 318 of 1993, 28 May 2004. Will give correct citation of this and the other citation to the parliamentary law advisor.

(5) Section 75

Concerns raised and suggestions offered:

Who will approve the release of lifers?

Suggestion: The National Commissioner and the National Council should approve the release of lifers, rather than the Minister.

Department:

The Minister in conjunction with the National Council will approve the release of lifers, according to the Bill.

The role of the court should be removed in all decisions regarding all lifers.

(6) Section 78

Concerns raised and suggestions offered:

Again deals with removing powers of the court and giving to Minister. Committee has a problem with this principle.

Department:

This is in line with the Botha case cited.

(7) Sections 68 onwards dealing with the Inspecting Judge

Concerns raised and suggestions offered:

How will the independence of the Inspecting Judge be affected by the CEO?

The independence of the Inspecting Judge is vital and is derived from its leadership by the Inspecting Judge. Suggestion: The appointment of the CEO must be in the hands of the Inspecting Judge and thus no secondments from the public service should be entertained.

Why has the function of reporting on 'corrupt and dishonest practices' been removed? Suggestion: While the function of reporting on corrupt and dishonest practices may have been removed by the Parliament in 2001, this was a mistake and should now be addressed. It should be put back into Section 85(2) and retained in Section 90(1).

The Jali Commission Report stipulated that an external agency must be responsible for investing corruption and fraud in the Department and does not agree with the removal of this function from the Inspecting Judge. Suggestion: In line with the Jali Commission Report this responsibility should be put back in the Act and a separate directorate established within the Judicial Inspectorate to deal with issues around corruption and fraud.

The Committee supports an internal DIU but the powers of the Inspecting Judge must also have these powers. Suggestion: The Inspecting Judge should identify corruption and fraud and report instances elsewhere i.e. to the DIU and/or external agencies.

Department:

The CEO is included in the Bill to ensure that non-judicial functions are removed from the work of the Judge. This is in line with the Judge Heath decision which stated that judges are not allowed to do executive or administrative functions. The amendment is made to ensure constitutionality in line with this judgement.

Currently the Inspecting Judge focuses on treatment and conditions of prisoners and not on corruption etc. Fraud and corruption are dealt with by other external agencies such as the SIU etc. The Department also has a Departmental Investigation Unit, which is an internal body, to fulfill this function. While the Department acknowledges that it is important for an external agency to be involved in dealing with corruption and fraud in the DCS, it believes that these functions can be done by other external agencies, and not the Inspecting Judge.

Main aim is to enhance the focus of the Inspecting Judge.

Department explained that the Act was amended in 2001 to remove the reporting of corruption and fraud from the Inspecting judge with regard to Section 85(2). However this amendment was not continued in Section 90(1) in error. This amendment just tries to address that omission.

Department stated that the removal of this function to report on corruption and fraud is to enhance the functions of the Judicial Inspectorate. In addition, judges are free to visit prisons at any time as stipulated in Section 99(1)