DEPARTMENT OF CORRECTIONAL SERVICES’ RESPONSE TO SUBMISSIONS MADE TO THE PORTFOLIO COMMITTEE ON THE CORRECTIONAL SERVICES AMENDMENT BILL, 2007

CLAUSES / SECTIONS OF THE ACT & NAME OF ORGANISATION	SUBMISSION	ANSWERS AND COMMENTS
Clause 1 – Section 1	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh 1. Definition of ‘care’ 2. Definition of ‘correctional centre’; 3. Definitions of ‘inmate, offender and unsentenced offender’. 4. Definitions to be amended to reflect the following categories of prisoners: awaiting trial detainees being unconvicted; convicted but not sentenced; sentenced prisoners; probationers; and parolees. 5. Clarification of ‘basic needs’ in view of the definition of ‘care’ including “persons under the authority of the Department”. 6. Translation into other ten official languages. Centre for the Study of Violence Reconciliation (CSVR) represented by Ms Amanda Dissel Change of terminology – ‘prisoner’ to ‘offender’ not supported. Offender is stigmatizing. Professor Dirk van Zyl Smit 1. Definitions of ‘care’; ‘needs-based programmes; ‘remand supervision’; ‘correction’ and ‘development’ to be provided. 2. Substitution of ‘inmate’ for ‘prisoner’, ‘‘correctional centre’, for ‘prison’ ‘incarceration’ for ‘imprisonment’, ‘offender’ for ‘sentenced prisoner’, and correctional medical officer’ not supported– for different reasons provided (illusion that prisons are not places where liberty is taken away and people in fact “imprisoned’; offender harsher than prisoner, etc). The Centre for Conflict Resolution represented by Ms Razaan Bailey Supports formalization of new terminology. No submissions from other organizations.	The Department accepts submissions regarding definitions and is busy working on same with the Office of the State Law Advisor (CSLA). These will be covered in the revised Bill to be presented to the Committee on Tuesday. The Department retains the following categories to replace the terminology ‘prisoner’: ‘inmate’, ‘sentenced offender’ and ‘unsentenced offender’. Translation of the Bill will be referred to the experts in these fields - new terminology will be addressed therein. Terminology is in line with the White Paper. See comments to CSPRI. See comments to CSVR. Noted.
Clause 7 – Section 7	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh 1. Inclusion of Regulation 3 (h) into the principal Act – under Section 7. 2. The Bill should describe conditions of awaiting trial sections in which children should be detained, or that the Minister be mandated to develop Regulations that would set the minimum standards for the detention conditions of children. No submissions from other organizations.	The Act already provides for separation of children from adults. According to the Constitution children are those under the age of 18 years. It is not necessary to have this in the Act as it is in the Regulation and is for internal management. Such are addressed in the Departmental policy document.
Clause 13 – Section 13	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh In order to cater for organisations fearing to report human rights violations and dishonest and corrupt activities – 3. the Bill to provide for the development of regulatory framework that would protect civil society organisations from unreasonable, arbitrary or unfounded denial of access to prisons, whilst at the same time providing for the development of a framework by the DCS regulating access to prisons by civil society organisations. 4. Appeal / review for denial of access to organisations by the Commissioner to be made to the Inspecting Judge whose decision shall be final. No submissions from other organizations.	The Department has already agreed that the Bill will provide for registration of organizations / denominations and for screening of members of their members for security purposes. This submission is rejected as this will not fall within the mandate or objective of this Office. After having exhausted internal remedies complaint may be lodged with any institution having the mandate to deal with such like the Office of the Public Protector.
Clause 16 – Section 16	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh 5. ‘Corrections’ and ‘development’ programmes and services to be defined. The Centre for Conflict Resolution represented by Ms Razaan Bailey 2. Support clause as it entrenches the commitment of the DCS towards the rehabilitation of offenders.	See comments under clause 1. Noted.
Clause 20 – Section 20	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh 1. Categorical cut-off point in the Act and in the Bill does not enable the state to serve the best interest of the child but rather provides bureaucratic security. Best interest of the child will be better served in such instances if these are dealt with on a case-by-case basis and in accordance with the objectives of the Children’s Act (38 of 2005). In all cases mother and baby be detained together and the Children’s Court to determine when such child to be removed from its mother and arrangements to be made in respect of alternative care. Centre for the Study of Violence Reconciliation (CSVR) represented by Ms Amanda Dissel Support the amendment. (However, Measures be implemented to improve quality and amount of contact that children are able to have with their incarcerated mothers). Non-custodial sentences should be first option for care-giving mothers. DCS and Social Development to make adequate visitation arrangements for children of imprisoned mothers and increased time for mother-child visitation. South African Human Rights Commission represented by Ms Judy Cohen 1. Best interest of the child to be a determining factor and determination to be done on a case-by-case basis. NICRO represented by Celia Dawson Support the reduction in the upper limit of five years and recommend that Children’s Court proceedings be opened immediately a mother is convicted and admitted to prison with a child… The child receives opportunity to live in the ordinary world. No submissions from other organizations.	Submission accepted. The Department has requested the CSLA to formulate a revised amendment - which will provide for the best interest of the child to be taken into account; and further that upon admission of such a female inmate the Department must immediately, in conjunction with the Department of Social Development, facilitate the process for proper placement of the child so admitted with the mother. The intention is not to get rid of the child immediately he or she turns the age of two years without taking into consideration other factors. The revised Bill will ensure that such considerations are covered. See comments to CSPRI. See comments to CSPRI. See comments to CSPRI.
Clauses 24 – Sections 24	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh 6. Clarification for the deletion of section 24(3)(b) of the Act. No submissions from other organizations.	After deliberations the Department advised the Committee that the subsection will be substituted. The revised Bill to be submitted to the Committee on Tuesday will reflect that in the case of repeated or serious offences an inmate may be segregated in order to be subjected to programmes and that this will be coupled with a loss of amenities and gratuity.
Clause 25 – Section 25	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh 7. Deletion of a penalty of ‘solitary confinement’ and replacement with ‘detained in a single cell’. Definition of ‘solitary confinement’ still retained under definitions. Reporting and obtaining approval from the Inspecting Judge before detention in single cell is impractical and unnecessary. Clause 25 be omitted from the Bill and section 25 be retained unchanged. 8. Alternative approach – deletion of section 25 and definition of ‘solitary confinement’, but amending section 30 to provide for ‘punishment of segregation in a single cell’ Aids Law Project & TAC represented by Mr. Jonathan Berger Amendment relating to solitary confinement substituted with detention in a single cell provides for segregation to correct offensive behaviour and seem not to protect other inmates. Provision regarding segregation seem to suggest broad powers of disciplinary officials in relation to detention in single a cell. Professor Dirk van Zyl Smit 1. Amendment of section 25 would muddy the distinction between ‘solitary confinement’ and ‘segregation’ i.t.o. section 30 and detention in single cell i.t.o. 7(2)(e). Only when detention in a single cell is combined with other restrictions, such as lack of association, does it become ‘solitary confinement’. The term solitary confinement be maintained. 1. Proposed new section 24(8) also complicates matters. Amendment not to be introduced.	Accept the proposal. Provision will be made in the Bill for the deletion of the definition of ‘solitary confinement’. The Department has already advised the Committee about the revised amendments of sections 24, 25 and 30. Submission will accordingly be crafted by the CSLA into the revised Bill. See comments to CSPRI. See comments to CSPRI.
Clause 30 – Section 30	See clause 25 re submissions from CSPRI. No submissions from other organizations.
Clause 31 – Section 31(2)	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Amendment supported. No submissions from other organizations.	Noted.
Clause 35 – Section 37	No submissions.
Clause 36 – Section 38	The Centre for Conflict Resolution represented by Ms Razaan Bailey Amendments welcomed as it highlights the focus of the DCS on rehabilitation of offenders. Need for DCS to ensure that correctional officers are skilled in conducting needs assessment and analyzing data to be in a position to deliver needs-driven programmes. Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Exclusion of prisoners serving a sentence of less than 24 months from having a sentence plan. South African Human Rights Commission represented by Ms Judy Cohen Does not support the amendment that excludes prisoners sentenced to less than 24 months from benefiting from the sentence plan. White Paper on Corrections stipulates that services must be rendered to all offenders.	Noted. This amendment is necessary as sentences of less than 24 months are seen more as a deterrence factor and such sentenced offenders will most probably be released after 12 months. However, such sentenced offenders nevertheless participate in other programmes without formalizing it in a correctional sentence plan. See comments to CSPRI.
Clause 38 – Section 40	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Provision of market-related skills in order to be gainfully employed upon release is a detailed description in the legislation and it will also expose the Department to liabilities if it is not done to provide work that develops market-related skills. S.A.P.O.H.R. represented by Mr. Miles Bhudu Submission for formation of prisoners’ union to ensure access to decent working conditions, living wages, labour and human rights protection. Also call for industrialization of the Correctional Services. No submissions from other organizations.	Submission accepted. Revised Bill proposes the deletion of ‘market-related’ and retains ‘skills’ only. Submission rejected. There is no employer-employee relationship between the Department and inmates. The objective of the Correctional Services is clear in the Act.
Clause 39 – Section 41	Aids Law Project & TAC represented by Mr. Jonathan Berger Bill silent on continuity of care after release – such as the case when an inmate is accessing ARV treatment within a correctional centre and is released into a community with limited to no access. Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Reference to needs-based programmes be omitted in the Bill or DCS to clarify needs-based programmes. No submissions from other organizations.	This is not the responsibility of the DCS but of the Department of Health. However, the Department manages releases in such a way that it strives to minimize an interruption of treatment of released offenders. The Department is attending to this and will appear in the revised Bill. See comments under clause 1 above.
Clause 40 – Section 42	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Clarification for submission of report by Case Management Committee (CMC) to the National Commissioner and not the Area Commissioner – as this will place heavy administrative duty on the office of the National Commissioner. The Centre for Conflict Resolution represented by Ms Razaan Bailey Support the amendment of section 42 in terms of which interviews are held at regular intervals. Issue of overcrowding highlighted as hampering service delivery.	This is to bring consistency in the Act in that the National Commissioner will delegate it to an appropriate level whereas it is currently fixed to the Area Commissioner. Noted.
Clause 43 – Section 45	Aids Law Project & TAC represented by Mr. Jonathan Berger Correctional medical officers not provided with any guidance as to how the health status examination should take place before release, and reference to the Health Act, 1977 is incorrect as the Act was repealed. No submissions from other organizations.	The Department does not agree as such examination is part and parcel of the medical practitioner training. Incorrect referencing will be corrected.
Clause 45 – Section 50 Clause 45(1)(a)(iv)	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh If the definition of inmate refers to convicted or not sentenced or not and detained in a Prison, therefore it will not be possible for unconvicted and unsentenced persons to serve their sentences in a non-custodial manner. Submit that clause 45 (i) a (iii) be omitted from the Bill as it is already covered in Section 50 (i). Request clarity on “completion of sentence and still pose a threat to society, or alternatively not pose a threat to society but have completed his/her sentence”. No submissions from other organizations.	The definitions are revised as per previous comments. In section the broad principle are addressed whilst in this clause all elements are indicated. This particular clause has been revised and the relevant part has been deleted.
Clause 47 – Section 52 Clause 47(c) Clause 47 – section 52(1)(d) Clause 47(e)	Aids Law Project & TAC represented by Mr. Jonathan Berger The Bill proposes that courts no longer have the power to order community corrections. Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Proposes that the purpose of house arrest to reduce the possibility of committing another sentence to be omitted from the Bill. No submissions from other organizations. On the issue of facilitating restoration of the relationship between the person concerned and the community the case of consensual crime (such as possession of drugs) may not apply. Therefore the amendment to be omitted from the Bill. No submissions from other organizations. Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh “Where possible” based on the high unemployment rate which makes it difficult for ex-prisoners to find employment? “Where possible” to be omitted from the Bill. No submissions from other organizations. Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Corrections and Care programmes to be defined. Definition of care to be re-looked as it excludes those who are in Community Corrections. No submissions from other organizations.	This is an incorrect interpretation as the courts may still do it in terms of section 276 of the Criminal Procedure Act. This clause to be deleted as it is a duplication with a section in the principle Act. Accepted by DCS. Accepted by the Department. This will be addressed in the revised Bill. Accepted by the Department. This will be addressed in the revised Bill.
Clause 49 – Section 55	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Submission made that the amendment excludes persons placed under Community Corrections in respect of 62(f) and Section 71 of the Criminal Procedure Act. No submissions from other organizations.	These cases - sections 62(f) and 71 are dealt with in terms of the CPA and not DCS legislation.
Clauses 50 & 52 – Sections 57 & 67	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Clarity sought on the following: Abstinence from alcohol and drug may be a condition of Community Corrections. Probationers and Parolees not to be under the influence of drugs to the extend that it impairs the process of Supervision. Testing is done if there is suspicion that the person is under the influence of alcohol and drugs. No submissions from other organizations.	The DCS clarified contradictory provisions. This condition only to be set in certain cases as conditions are considered on a case by case basis.
Clause 53 – Section 68	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Clarity sought on the following: Duties of unpaid volunteers. Screening process to prevent association with offenders. Provision of training and protective clothing in high risk situations. No submissions from other organizations.	Volunteers will only be utilized where they are not exposed to situations where they might be in danger. The issues of training noted.
Clauses 56 & 57 – Sections 73 & 73A	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Not in support of putting the power of determining the minimum time to serve before parole is considered in the hand of the political head. Minister may change incarceration framework without consulting Portfolio Committee. Minister only have to consult with NCCS and give notice in Gazette thus undermining the intension of the sentencing Court. UWC Faculty of Law represented (UWC – Law Faculty) by Professor Julia Sloth-Nielsen Raised concern that it will create a third version of calculating the minimum time as it is already confusing staff and Parole Boards. Needs legislation that simplify calculations of release date. Centre for the Study of Violence Reconciliation (CSVR) represented by Ms Amanda Dissel Raised concerns regarding determination of minimum period by Minister. Suggest a change in minimum time set for offender sentence in terms of Sections 51 & 52 of CLA. Concerned about the fact that Minister can underdetermine minimum time for lifers for parole to be considered. Aids Law Project & TAC represented by Mr. Jonathan Berger Do not support the power provided to Minister. South African Human Rights Commission represented by Ms Judy Cohen Do not support the amendments and raised the question whether the Minister will make the incarceration framework known or obtain approval from Cabinet. Professor Dirk van Zyl Smit Opposed the amendment with regard to minimum time to serve as the provision in the current Act were designed to avoid manipulation by excluding the Minister from the process allowing the Department to prove information on whether release should be granted but placing the final decision in the hands of a professional and independent body. Also propose Section 67(6) (b)(v) regarding minimum sentencing legislation be dealt with the same as determinate sentences namely ½ of sentence. Propose an increase in time to serve with regard to offenders sentence in terms of Section 276(1)(i) of CPA (1/3 instead of 1/6 (Section 73(7)). In support that the power to approve parole w.r.t. lifers be shifted from the Courts to Minister. KHULISA Will put a huge burden on Minister where presently this is done by the court. No submissions from other organizations.	The Departments view point is that the amendments are not unconstitutional and that the incarceration framework will enable the Department to regulate the parole system more effectively. Furthermore that is it not the intention of the Department to interfere with the powers of the court. Courts may still impose non-parole periods and the Department will abide by that. Section 73A will also be altered to provide that the incarceration framework be consulted by the NCCS with the National Commissioner where after it will be ratified by the Minister and published by notice in the Government Gazette. This will also ensure that the concern raised by the organizations that 25 years for lifers will be tampered with be dealt with in a responsible manner.
Clause 58 – Section 74	No submissions.
Clause 59 – Section 75(a) Section 75(c) (d) & (e) Section 75(f) Section 75(f)	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh See comments w.r.t. Section 36(c) Clause 38(2). Support the shifting of power to release lifers on Parole from Court to Minister. Do not support the increase to 24 months as it is not in line with the White Paper on Corrections which determine that services must be available to all offenders. South African Human Rights Commission represented by Ms Judy Also not in support of the increase of 12 months to 24 months as it excludes offenders from having a sentence plan. Aids Law Project & TAC represented by Mr. Jonathan Berger Department gave no indication why the power should be shifted. No submissions from other organizations. No submissions. Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh See comments in clause 36(c) – section 38(2). No submissions from other organizations. No submissions.	See comments above with regard to the increase of 12 months to 24 months. Furthermore general support for the shifting of powers of offenders serving sentences of life incarceration to the Minister.
Clause 60 – Section 76(b)	No submissions.
Clause 61– Section 77(1)	No submissions.
Clause 62 – Section 78(1) to (4)	UWC Faculty of Law represented (UWC – Law Faculty) by Professor Julia Sloth-Nielsen Support shifting power to Minister. Professor Dirk van Zyl Smit Support shifting power to Minister. No submissions from other organizations.	Noted. Noted.
Clause 63 – section 79	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Not in agreement with addition. Proposal of new addition made. Aids Law Project & TAC represented by Mr. Jonathan Berger The conditions will make it more difficult to release offenders on medical parole and will also undermine the rationale behind medical parole. No submissions from other organizations.	Accept proposal and will address in revised Bill.
Clause 64 – section 80(1) & (2)	No comments but if incarceration framework section 73(A) is not accepted this section must be rectified. No submissions from other organizations.	Noted.
Clause 65 – section 81(2) & (3)	No submissions.
Clause 66 – section 82(1) (a) & (b)	No submissions.
Clause 67 – section 83(1) (a) & (b)	No submissions.
Clause 69 to 76 sections 85 to 91	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Do not support the removal of the duty of the Inspecting Judge to report on corruption and dishonest practices from the Act. Do not support the appointment of the Chief Executive Officer (CEO) by the Director-General. Secondment and appointment of staff for the Office of the Inspecting Judge will interfere with the independence of this office. Aids Law Project & TAC represented by Mr. Jonathan Berger Amendments will interfere with the independence of the Inspecting Judge’s office. South African Human Rights Commission represented by Ms Judy Support appointment of the CEO but he or she should be appointed by the Inspecting Judge so as to avoid interference with the independence of this Office. No submissions from other organizations.	The Department has already provided a revised proposal to the Committee on this clause. The provision to remain as is in the Act except for the amendments with have the following implications: § The appointment of the CEO who will be appointed by the Inspecting Judge in consultation with the National Commissioner and the Director-General of the Department of Public Service and Administration. § Staff to be appointed by the CEO (as per needs and request of the Inspecting Judge). § Assistants (legal, medical, penological, and other expertise) to be appointed by the CEO as per needs and request of and in consultation with the Inspecting Judge. § IPVs to be appointed by the CEO as per needs and request of and in consultation with the Inspecting Judge. § The CEO is under the authority and control of the Inspecting Judge. § Administrative / financial / clerical duties are the responsibilities of the CEO. § The CEO to account for the finances of the Offices. § Reporting on fraud and corruption is not part of the objective of the Inspecting Judge’s Office. However, like any other public body this Office is obliged to report on dishonest and corrupt activities in terms of the Prevention and Combating of Corrupt Activities Act. The CSLA is assisting with the revised amendments which will appear in the revised Bill to be submitted on Tuesday.
Clause 77	No submissions.
Clause 78 – section 95	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh Support amendment and proposes additional subsections to strengthen the curbing of corruption within the DCS. No submissions from other organizations.	Mechanisms are in place in terms of the DSO (Scorpions), SIU and Crime Intelligence of the SAPS.
Clause 79 – section 95A	No submissions.
Clause 80 – section 96	Aids Law Project & TAC represented by Mr. Jonathan Berger Provision for summary dismissal in the Bill is in contravention of section 23 of the Constitution. No submissions from other organizations.	The amendment is in line with the provisions of the Labour Relations Act.
Clause 81– section 98	Aids Law Project & TAC represented by Mr. Jonathan Berger Does not agree that with regard to professionals (medical like nurses) ‘prescripts’ of the Department supersede their professional and / or ethical responsibilities. No submissions from other organizations.	The Department is not saying that. The amendment does not affect their professional independence.
Clause 82 – section 99	No submissions.
Clause 83 – section 101	No submissions.
Clauses 84 to 92– sections 104 to 121	No submissions.
Clause 93– section 123	Civil Society Prison Reform Initiative (CSPRI) represented by Mr. Lucas Muntingh The Inspecting Judge, and not the Minister, should deal with appeal. No submissions from other organizations.	The Minister is the logical next level of appeal and the issue of publication does not fall within the mandate of the Office of the Inspecting Judge.
Clause 94 – section 124	S.A.P.O.H.R represented by Mr. Miles Bhudu Support amendment relating to unauthorized wearing of inmate dress. No submissions from other organizations.	Noted.
Clause 95 – section 133	S.A.P.O.H.R represented by Mr. Miles Bhudu See submission in clause 38 – section 40. No submissions from other organizations.	See comments in clause 38 – section 40.
Clause 96– section 134	No submissions.
Clause 97 – section 136	See various submissions regarding the incarceration framework.	This provision is the transitional provision in the principal Act and will be aligned according to the proposals.