REPORT OF THE PORTFOLIO COMMITTEE ON CORRECTIONAL SERVICES ON THE CORRECTIONAL MATTERS AMENDMENT BILL [B41-2010], DATED 2 MARCH 2011

The Portfolio Committee on Correctional Services, having considered the subject matter of the Correctional Matters Amendment Bill [B41-2010] (National Assembly – sec 75), reports the Bill with amendments [B41A-2010].

1. INTRODUCTION

1.1 The draft Correctional Matters Amendment Bill (‘the Bill’) was submitted to Parliament and referred to the Portfolio Committee on Correctional Services (‘the Committee’) and the Select Committee on Security and Constitutional Affairs on Friday, 29 October 2010. On 10 November 2010 the Committee received a briefing by the Minister and Department of Correctional Services on the proposed legislation.

1.2 The Bill was introduced and referred to the Portfolio Committee on Correctional Services on 10 November 2010. The Joint Tagging Mechanism classified it as a Bill to be processed in terms of Section 75 of the Constitution.

1.3 The Bill seeks to amend the Correctional Services Amendment Act, 2008 in order to repeal provisions establishing an incarceration framework; amend the Correctional Services Act, 1998 in order to insert new definitions; provide for a new medical parole system; strengthen the parole system; provide for the management and detention of remand detainees; and to provide for matters connected therewith.

1.4 The Committee published an invitation for public comment on the Bill in four national newspapers, and received written submissions from the eight organisations listed below. All, but the Commission for Gender Equality participated in the public hearings held on 25 January 2011. The National Prosecuting Authority withdrew its submission on 27 January 2011. Eight written submissions were received from: National Institute for Crime Prevention and the Rehabilitation and Reintegration of Offenders (NICRO); Civil Society Prison Reform Initiative (CSPRI); Commission for Gender Equality (CGE); Omega Research Foundation and the Institute for Security Studies (ISS) Arms Management programme; ISS Crime and Justice Programme; South African Medical Association (SAMA); Judicial Inspectorate for Correctional Services (JICS); and the National Prosecuting Authority (NPA).

2. COMMITTEE DELIBERATIONS

The Department of Correctional Services (DCS) proposed amendments to 12 sections of the Correctional Services Act. While most were agreed to, some were fiercely debated, and are summarised below.

2.1 Clause 1: Amendment of Section 1 of Act 111 0f 1998, as amended by section 1 of Ac t 32 of 2001 and section 1 of Act 25 of 2008

The Committee feels strongly that mentally ill remand detainees should preferably not be held in remand detention facilities.

2.2 Clause 3: Amendment of Section 5 of Act 111 0f 1998, as amended by section 4 of Act 32 of 2001 and section 4 of Act 25 of 2008

The Committee believes that given the limited scope for the monitoring of the treatment and conditions of incarceration of remand detainees held in police cells in those areas where there are no remand facilities, the period for which they can be held police custody should be clearly defined and kept as short as possible. The proposal that, unless authorised by the National Commissioner, the period should not exceed 30 days is rejected. It was agreed that that period should be no longer than seven days, with no possibility of extending it.

2.3 Clause 6: Amendment of Section 38 of Act 111 0f 1998, as amended by section 30 of Act 25 2008

The Committee accepted the proposed amendments and agreed to the addition of a further assessment criterion. Given the prevalence of sexual violence among inmates, it was agreed that all sentenced offenders should upon admission be assessed for their vulnerability to sexual violence and exploitation too. Although, the Committee would have preferred that remand detainees too be subjected to such assessment, it accepted that, given the large numbers of such detainees admitted and released daily, this would not be practical.

2.4 Clause 9: Substitution of Chapter V of Act 111 of 1998

2.4.1 Owing to its vagueness, the Committee rejected the sub-clause proposing that the provisions of section 6 to 24 of the principal act apply to remand detainees with such changes as may be required by the context. The remaining amendments were agreed to as they adequately provide for the management, safe custody and well-being of remand detainees.

2.4.2 The DCS proposed that all requests for information relating to the incarceration of a remand detainee should be made in accordance with the Promotion of Access to Information Act of 2000. The Committee rejected this amendment, as it believed the process to cumbersome in the context of remand detention. It was vital that detainees’ relatives and legal representatives, for example, be able to access such information with relative ease. The provision that information and records, as prescribed by the regulations, must be kept at the relevant detention facility was sufficient and was agreed to.

2.4.3 The Committee found the proposal that the provisions of sections 12 and 20 of the Act should apply to pregnant remand detainees with such changes as may be required by the context too vague, and rejected it. The remaining amendments were agreed to, as they sufficiently provided for the special needs of pregnant remand detainees.

2.4.4 The Committee welcomed the proposal compelling the wearing of uniforms by remand detainees. This provision will go a long way towards curbing escapes while in transit to or from police cells and courts. Aware of the possibility that a not yet convicted person may be discriminated against because he or she is wearing a uniform, it was agreed that no remand detainee should appear in court wearing the prescribed uniform, and that, where necessary, the DCS must, at its own expense, provide appropriate clothing for court appearances.

2.4.5 The Committee amended the provisions related to mentally ill and disabled remand detainees to compel the DCS to provide, within its available resources, adequate health, social and psychological services to these categories of offenders.

2.4.6 For the same reasons as the ones captured in 2.1 above, the Committee believes that the period for which remand detainees may be released to police custody for the purposes of further investigation into charges other than the ones for which they are detained, should not be authorised for periods exceeding seven days. The provision that the National Commissioner for the South African Police Service may apply to have this period extended is therefore rejected.

2.5 Clause 12: Amendment of Section 73 of Act 111 of 1998, as amended by section 27 of Act 32 of 2001

The DCS proposed that any sick offender whose sentence has expired, but who has been certified medically unfit for release, may be temporarily detained until his or her condition improved. This provision was rejected as it is undesirable to detain any person who has completed his or her court imposed sentence. It was agreed that, where an inmate’s release upon expiry of his or her sentence may result in his or her death or the infection of others, the National Commissioner must inform the Department of Health, at least one month prior to the release, in order for the latter to provide for such a person in terms of its mandate.

2.6 Clause 13: Amendment of Section 75 of Act 111 of 1998, as amended by section 29 of Act 32 of 2001 and section 51 of Act 25 of 2008

2.6.1 The DCS had proposed that correctional supervision and parole boards must inform complainants or their relatives, in writing, of when and to whom they may make representations, as well as of the time and place of meetings where sentenced offenders are to be considered for parole. Following the public hearings, the proposed amendment was withdrawn, given that adequate provision for victim participation was made in section 299A of the Criminal Procedure Act. The Committee supports the withdrawal.

2.6.2 The Committee proposed that the period within which the Correctional Supervision and Parole Review Board (CSPB) must finalise reviews should be clearly defined, so as to ensure that, in cases where parole was erroneously denied, offenders do not spend an unnecessarily long period in incarceration. It was agreed that reviews should be completed within four months of their referral.

2.6.3 The provision related to those bodies that may refer a medical or ordinary parole decision for review elicited much debate. Some proposed that, in addition to the Minister, National Commissioner and the Judicial Inspectorate for Correctional Services (JICS), a mechanism whereby the public may submit such a request, should be provided for. This proposal was rejected on the basis that it implies a lack of faith in the organs of state already in existence to ensure adherence to the policies and procedures governing parole. Arguments that the cost of seeking legal recourse was such that many offenders would not be able to make use of this avenue to seek a review notwithstanding, it was agreed that the DCS-proposed amendments were adequate.

2.7 Clause 14: Substitution of section 79 of Act 111 of 1998, as amended by section 55 of Act 25 of 2008

2.7.1 The Committee was of the opinion that the prevailing conditions in correctional centres may, in some instances, force inmates to harm themselves in desperation. The provision that inmates with self-induced injuries should not be considered for medical parole was too rigid, as it did not take into account the unique circumstances of each case. It was further believed that, as a medical advisory board would be available to assess each case, that board would be able to detect instances where an inmate was merely trying to manipulate the system for his or her gain. The proposal to exclude all inmates with self-induced injuries was therefore rejected.

2.7.2 The Committee welcomed the proposed amendments allowing a medical practitioner, as well as a sentenced offender, to lodge an application for medical parole. In addition, it was agreed that, in order to cater for those inmates who, owing to the severity of their medical condition, are unable to lodge such a complaint on their own, a person acting on their behalf should also be allowed to lodge such a complaint.

2.7.3 The DCS proposed that the Minister may establish provincial medical advisory boards to oversee the processing of medical parole applications. The Committee welcomed this initiative, but felt that the legislation should compel the Minister to establish one medical advisory board, with provincial representation. Establishing nine such boards, as per the proposal, was neither practical nor cost-effective.

2.7.4 Some had felt that given the complexities and recent controversies around medical parole, its administrative processes and procedures should be outlined in the legislation itself, and not merely be contained in the regulations. Heeding the Committee’s concerns, the DCS agreed that the processes and procedures governing the administration of medical parole should be outlined in regulations to be made within six months of the promulgation of the Correctional Matters Amendment Act, and that these regulations must be submitted to Parliament for approval.

2.8 Further comments and recommendations

2.8.1 Given the concerns about the care and conditions of incarceration of inmates transferred to or detained in police custody, outlined in 2.1 and 2.4.6 above, the Committee is of the opinion that should the Optional Protocol to the Convention against Torture (OPCAT) not have been ratified within 18 months of the promulgation of the Correctional Matters Amendment Act, the amendments regarding the permissible period of detention in police custody should be referred to Parliament for reconsideration.

Report to be considered.