Report
of the Portfolio Committee on Correctional Services on the Judicial
Inspectorate for Correctional Services 2009/10 Annual Report, dated 26 January
2011
The Portfolio Committee on Correctional Services,
having considered the 2009/10 Annual Report of the Judicial Inspectorate for
Correctional Services, reports as follows:
1. INTRODUCTION
1.1 In
its consideration of the 2009/10 Annual Report of the Judicial Inspectorate for
Correctional Services (JICS), the Portfolio Committee on Correctional Services
received a briefing by the JICS on the report (17 November 2010). The Committee
usually requests public comment on annual reports, but, owing to the late
tabling of said report, it could not do so in this
instance.
1.2 The
JICS officials who appeared before the Committee included: Judge DH van Zyl (Inspecting Judge); Mr G Morris (JICS: Director); Mr M Prusent (JICS: Western Cape Regional Manager); Mr A Carelse (JICS: Gauteng Regional Manager); Mr U Raga (JICS:
Acting National Manager Legal Services). Ms B Nene
and Ms P Kekana (JICS: independent Correctional
Centre Visitors)
1.3 This report
comprises an overview of key aspects related to the JICS’ operation and
conditions of incarceration and the treatment of inmates contained in the
Annual Report, as well as the Committee’s observations and recommendations.
2. KEY
OBSERVATIONS EMANATING FROM THE JUDICIAL INSPECTORATE FOR CORRECTIONAL
SERVICES’ 2009/10 ANNUAL REPORT
2.1 Administration
2.1.1 The
JICS is an independent office, established in terms of the Correctional
Services Act (CSA) and headed by the Inspecting Judge. Section 85 (2) of the
Act states that the JICS is to facilitate inspections of correctional centres
in order for the Inspecting Judge to report on the treatment of inmates, and on
conditions of incarceration. The JICS’ vision is “to ensure that all inmates
are detained under humane conditions, treated with human dignity and prepared
for a dignified reintegration into the community”.
2.1.2 At
the end of March 2010 the JICS had a staff complement of 50, and 220
independent correctional centre visitors (ICCVs), who
are independent contractors. The Correctional Services Amendment Act 25 (2008)
provided for a number of amendments to the JICS’ staffing and structure,
including the appointment of a chief executive officer (CEO) to be appointed by
the National Commissioner for Correctional Services (National Commissioner). At
the time of reporting that post had however still not been created and funded
on the JICS’ fixed staff establishment and hence a CEO is yet to be appointed.
2.1.3 Section
91 of the CSA provides that the DCS is responsible for the JICS’ expenses. The
JICS’ expenditure amounted to R19 111 730, 08, approximately R4 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. As the JICS is not a department, a
constitutional institution, or a public entity as defined by the Public Finance
Management Act (PFMA), its expenditure is audited as part of DCS’. The JICS
suggested it be audited as a separate entity, as the combined auditing may
distort the true state of financial management within it.
2.1.4
2.1.5 The
JICS lamented its limited mandate, as well as its lack of power to monitor the
implementation of recommendations emanating from its inspections. The DCS
rarely acknowledges reports received, and even more seldom responds to or
implements recommendations. This was starkly illustrated by the fact that,
despite its request for such a meeting, the JICS had, weeks after the tabling
of its Annual Report, not yet had opportunity to discuss their performance over
the past financial year with the Minister or the National Commissioner. At
present, the Inspecting Judge can investigate matters referred to it, and
conditions of incarceration, but cannot issue the judicial orders that may
result in matters being dealt with the necessary urgency. The DCS presented its
measures for improving the relationship, but concerns about the apparently
strained relationship between the JICS, and the DCS and its Executive remain.
2.2 Conditions
of incarceration and the treatment of inmates
2.2.1 Although
the level of incarceration has dropped to 139%, considerably lower than the
170% recorded at the end of the 2002/03 financial year,
2.2.2 The
JICS reports that, although the ATD population has decreased from almost 64 000
in April
2000 to 49 030 by May 2010, unsentenced
offenders still constituted more than 30% of the inmate population, and 52% of
the population at those centres that are critically overcrowded. ATDs, although not yet convicted, are subjected to the same
inhumane conditions sentenced offenders are subjected to, and this presents an
ethical dilemma that requires serious attention.
2.2.3 The
JICS reports that the sentenced offender population has also decreased
dramatically: in November 2004 the population peaked at just over 137 600
offenders, and by the end of March 2010 that number stood at approximately 114
280 offenders. The burgeoning number of offenders serving long sentences is a
matter of grave concern as it is likely to impact on conditions of
incarceration and the DCS’ rehabilitation efforts. While the impact of the
dramatic growth on conditions of incarceration, overcrowding and the treatment
and safety of detainees is matter of speculation, the JICS believes that
detailed research and monitoring of its impact on the rehabilitation and
reintegration of offenders should be done.
2.2.4 The
JICS’ comments regarding the positive impact efficient management of facilities
has on mitigating the effects of overcrowding, are
noted. Where inmates are allowed to spend a considerable part of their day
participating in work, development, recreational or rehabilitation programmes,
conditions could, regardless of the level of overcrowding, be described as
good.
2.2.5 In
relation to the roll-out of development, work and education programmes, the
JICS found that, in general, infrastructure and very expensive equipment were underutilsed. In addition, major discrepancies in the distribution
of personnel existed from one correctional centre to another. The JICS
recommends that in relation to education programmes for example, resources
should be pooled at those centres that had the necessary infrastructure. Given
the DCS’ major challenges in delivering programmes to inmates, the JICS further
recommends a more formalised approach to making use of the services of the
various non-governmental, faith-based, etc organisations that are providing
services at about 82% of correctional centres.
2.2.6 Section
40 (1)(a) of the Correctional Services Act compels the DCS to, as far as is
practicable, provide sufficient work to keep offenders active for a normal
working day, and that offenders may be compelled to do such work. Structured
interviews conducted by the JICS between November 2009 and February 2010,
however, revealed that only between 10% and 15% of sentenced offenders with or
without sentence plans, across 74% of the country’s correctional centres,
participated in regular rehabilitation and work programmes. Capacity
constraints, such as inadequate infrastructure and human resources, and lack of
teaching materials, made the implementation of sentence plans (in those
instances where inmates had them) near impossible. Correctional centre workshops
and farms were underutilised and therefore underproductive. Various austerity measures have resulted
in budgets for such activities being cut, and staff shortages owing to the
implementation of the 2x12 hour shift system have resulted in some workshops
having been closed. The DCS has reported that there has since been some
improvement.
2.2.7 The
Annual Report for the first time included information on DCS investigations
into the 55 reported unnatural deaths, broken down into 19 homicides, 30
suicides and six deaths of which the causes were classified as unknown, for
2009. Although there appeared to have been discrepancies between the DCS’
records and what HCCs had reported to the JICS, the
DCS eventually confirmed the JICS record. In 47 of the cases investigations
had, at the time of reporting, not yet been completed. DCS officials were
implicated in 18 homicides; at least one death resulting from continuous
assault by officials even after the victim had ceased to pose a threat. The
information received from the DCS made clear that there was a dire need for the
JICS’ inquisitorial role to be strengthened. It was pointed out that many of
the suicides may have been prevented had the DCS acted on reports that inmates
who later killed themselves, were suicidal. In such cases negligence could be
proved, and therefore proper inquests ought to take place.
2.2.8 In
addition to the above-mentioned” unnatural” deaths, the JICS received 992
reports of ”natural deaths”. Owing to it not yet
having received the death certificates and other supporting documentation
related to these deaths, the JICS was unable pronounce itself on the
circumstances surrounding these deaths. Steps are being undertaken to ensure
that, in the next financial year, a full analysis of all deaths will be made.
The Annual Report draws attention to the fact that given that in a large number
of cases unsentenced and sentenced offenders were not
medically assessed upon admission, many of the deaths listed as ‘natural’ may
well have been prevented.
3. RECOMMENDATIONS
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 BRR reports on the financial
performance of departments accountable to them. Though the 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 urges the Minister of Correctional Services to ensure that the JICS’
Annual Report is tabled in sufficient time to allow its consideration during
the above-mentioned process.
3.2 The
Committee agrees that, given that the DCS operates entirely independently,
its financial management ought to be separately audited. The feasibility of
such auditing should be explored and, if possible, implemented as soon as
possible. Ways in which the JICS may receive its own budget, independent of the
DCS’, should also be explored, as this could only enhance its independence. As
already recommended in the Committee’s Budgetary Review and Recommendation
(BRR) report, the National Commissioner must, by 28 February 2011, provide a
progress report on the DCS’ exploration of ways in which the JICS can be
allocated its own budget and be sufficiently resourced to perform the functions
it is mandated to perform.
3.3 As
the JICS plays a major role in ensuring humane detention, all measures aimed at
strengthening it, including a legislative review, should be explored.
Furthermore the relationship between it and the DCS should be better managed:
although the JICS receives only a fraction of the DCS’ national budget, that allocation is wasted if
the JICS’ efforts remain recommendations that are not taken seriously and are
not implemented to ensure safer, more humane and constructive incarceration.
3.4 The
approximately 30% reduction in the inmate population since 2003 is applauded,
but the levels remain unacceptably high. Cluster departments should synchronise
efforts to reduce this population: ways of reducing sentence lengths, greater
use of plea bargaining, fewer unnecessary arrests leading to long periods spent
in remand and Heads of Correctional Centres (HCCs)
using their powers to authorise parole for those serving less than two years
should be promoted. Where capacity is lacking, judicial, police and
correctional officials should receive the necessary training to ensure that
these interventions are utilised.
3.5 The
Committee agrees that the impact overcrowding has on service delivery to offenders
must be closely monitored for speedy intervention. The DCS, though not solely
responsible for the high levels of overcrowding in its centres, must spearhead
interventions aimed at lowering the inmate population, as it is the Department
that feels its impact most. In its BRR report the Committee recommended the
submission of a report detailing the extent to which HCCs
apply their powers for reducing overcrowding, and the numbers of offenders that
have been released as a result thereof. This report, as well as the proposed
policy/action plan for managing the remand system, is to be tabled before the
Committee by 28 February 2011.
3.6 The
JICS’ recommendation that resources be pooled at specific centres
to which inmates could be transferred depending on their educational and
development needs, is welcomed. This recommendation is consistent with the
Committee’s opinion that the DCS should consider identifying “centres of
expertise” where resources for different workshops, agricultural activity, and
educational programmes could be concentrated, particularly given the shortage
of educators and artisans, and the under-utilisation of infrastructure and
agricultural land. Both the JICS and the DCS should explore the feasibility of
such an intervention and provide feedback within three months of the adoption
of this report.
3.7 The
Committee had in its report on the DCS and JICS performance in the 2008/09
financial year expressed its outrage at the high number of deaths in
correctional centres, particularly those classified as unnatural. The DCS’
reports on the 55 such deaths recorded in 2009 alone, included in the JICS’
2009/10 Annual Report, reflect that the situation has not improved at all. The
Committee agrees that all custodial deaths, natural or unnatural, should be
subject to a medico-legal examination as defined by the National Health Act
(2003). This is vital, particularly given DCS officials’ apparent history of
assaults on inmates, as well as the suggestion that many ‘natural’ deaths may
have been prevented had the necessary medical examinations taken place on
admission, and medical care been given. Particularly appalling are the deaths
that resulted after “continuous” assaults by officials, which in the
Committee’s view should be categorised as incidents of torture, rather than
assault. Both the DCS and the JICS should provide quarterly reports on the DCS’
interventions aimed at eradicating deaths, a breakdown of deaths recorded for
that period, as well as of the DCS’ compliance as far as the mandatory reports
required by the JICS.
3.8 The
Committee shares the concerns regarding the possible duplication of functions
when the OPCAT is ratified. It has sensitised the Portfolio Committee on
Justice and Constitutional Development to the JICS’ concerns. It recommends
that, rather than a new national preventative mechanism being put in place, the
JICS functions be extended in order to include those functions required by the
OPCAT.
4. APPRECIATION
The Committee thanks the JICS officials who
appeared before it for their input and co-operation. It welcomes improvements the JICS has
made to its reporting, particularly the inclusion of more information regarding
deaths in correctional centres, public participation and its correctional
programme audit, as well as the frankness with which challenges are highlighted
and solutions are proposed.
Report to be considered.
_________________________________ ________
Chairperson: Mr V G Smith, MP Date