Correctional Services Amendment Bill: public hearings

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
04 September 2007
CORRECTIONAL SERVICES AMENDMENT BILL: PUBLIC HEARINGS

Chairperson: Mr D Bloem (ANC)

Documents handed out:
Department of Correctional Services (DCS) motivation for amendments
Correctional Services Amendment Bill [B32-2007] as introduced 27 July 2007
Department’s list of Proposed Amendments to Bill (issued 31 August 2007)
Issues raised by the Committee at 31 August meeting & DCS response

Written Submissions to the Public Hearings:
Civil Society Prison Reform Initiative
University of the Western Cape - Faculty of Law
Centre for the Study of Violence and Reconciliation
South African Prisoners’ Organisation for Human Rights [Part 1]&[Part 2]
Aids Law Project and Treatment Action Campaign Joint Submission
South African Human Rights Commission
Legal Resource Centre
Department of Social Development

Audio recording of meeting

SUMMARY
In a full day of public hearings, the Committee heard submissions from: the Civil Society Prison Reform Initiative, the University of the Western Cape’s Faculty of Law, the Centre for the Study of Violence and Reconciliation, the South African Prisoners’ Organisation for Human Rights, the Aids Law Project and Treatment Action Campaign, the South African Human Rights Commission, the Legal Resource Centre and the Department of Social Development. Issues that arose repeatedly were the role and staffing of the Judicial Inspectorate; the administration of parole; children of incarcerated mothers; the correctional sentencing plan; human rights of prisoners; the re-wording of ‘solitary confinement’, and continuity of health care.

In general there seemed to be consensus. The main point of disagreement between the Department and the presenters concerned the independence of the Judicial Inspectorate. There was a strong call from the public that it should not be staffed by persons seconded from Correctional Services. However, the Department did not see this as compromising the independence of the Judicial Inspectorate. The other matter of emphasis was parole had to be made consistent and the proposed amendment to let the Minister on Correctional Services decide on parole terms, would add to the confusion. Further, it was unconstitutional as it broke the separation of powers principle.

MINUTES
The Chairperson outlined the programme for the day’s hearings. As an introductory remark, he raised the question of what ‘life imprisonment’ means, in light of the recent killings of police. He then called for the Department of Correctional Services to give an explanation for the proposed changes to the Act.

Advocate Millicent Malebye, Legal and Special Operations, DCS presented a brief slide show that outlined the rationale for, and contents of, the amendments. She pointed out that subsequent to the public distribution of the Bill there had been alterations, and she expanded on these (see list). The original intention of the Bill was to align the Correctional Services Act with the White Paper on Corrections of South Africa of 2005. After discussion with the Committee, some of the Amendments were changed and repealed. These changes were of specific concepts and terminology, as well as more substantive changes. The proposed name changes to the Judicial Inspectorate had now been taken out of the Bill.

The Chair thanked the Department and reminded the presenters that they did not want to discuss the Office of the Inspecting Judge, as it had now been withdrawn.

Civil Society Prison Reform Initiative submission
Mr Lucas Muntingh, Co-ordinator of the Civil Society Prison Reform Initiative (CSPRI) began his presentation by asking if he would be allowed to send the Committee an additional submission in response to the late submission of the new alterations from the DCS. He then gave a summary of the written submission of the CSPRI noting that their submission was framed by four items: the White Paper; the need for clarity; the importance of the care of prisoners; and the recommendations of the Jali Commission. The submission was in-depth, and detailed the CSPRI’s reservations and comments on the Bill clause by clause. The CSPRI called for the children of incarcerated mothers to be dealt with according to the recent Children’s Act, and the report of the Inspecting Judge to be made a public document. Mr Muntingh also raised issues not covered in the Bill such as the alleged transfer of whistle-blowing prisoners; the use of torture; and called for any use of force to have to be reported to the Office of the Inspecting Judge.

Discussion
Bishop Tolo (ANC) cited the example of corruption he saw in Pollsmoor Prison recently and agreed with Mr Muntingh that ‘all officials of the Department have a duty to report corruption.’

Mr Muntingh further noted that protection should be given for all who wish to report corruption, including the inmates. The Protected Disclosures Act covers employees, but does not protect the prisoners. The Jali Commission raised this point of impunity repeatedly.

Mr S Mahote (ANC) asked for clarity about CSPRI’s point about non-government organisations (NGOs).

Mr Muntingh explained that these organisations, working in good faith, sometimes had come across instances of crimes or human rights violations in the prisons and were afraid to report the corruption, for fear of losing access to the prisons. He asked that the Inspecting Judge should be involved in these instances to ensure that the NGOs could not be denied access if they had reported something.

Mr Mahote asked if the children’s courts proposed by the CSPRI existed already, or needed to be created.

The Chair, Mr Bloem, contributed to this question and asked what the father’s responsibility is to children whose mothers are incarcerated.

Mr Muntingh responded to both the speakers informing them that where was already existing legislation (the Children’s Act) that made provision for a court to be set up in the best interests of the child, and it was not necessary for the DCS to make these decisions concerning children.

Ms W Ngwenya (ANC) asked for clarity about the problem with the use of ‘single cells.’

Mr Muntingh replied that, in the opinion of the CSPRI, ‘detention in a single cell’ can be seen as a privilege and it does not convey the same meaning as the previous term ‘solitary confinement.’

The DCS then responded to the input. Adv Malebye described Mr Muntingh’s contribution as valid and said that there was nothing in the Bill contrary to the four framing items of the presentation. The concerns about definitions were noted and the DCS would work on them together with the Chief Law Advisor. Adv Malebye assured the Committee that the DCS wanted to root out corruption, and there was a whistle-blowing program running, though to write it in the legislation would result in too cumbersome a Bill.

Mr Carel Paxton, Director of Code Enforcement, DCS, spoke to Clause 24 and said that Mr Muntingh’s suggestion about ‘solitary confinement’ was acceptable to the Department.
 
Mr Muntingh completed his submission by reminding the Department to be mindful of the work of the Jali Commission and to assist all departments to combat corruption, as well as to legislate it for emphasis. The Jali Commission had also found that there was victimisation of whistle-blowers and, even if protection was legislated, it needed to be enforced.

Law Faculty of the University of the Western Cape submission
Prof Julia Sloth-Nielsen, Faculty of Law at the UWC, prefaced the presentation by mentioning that she had been involved in provincial workshops concerning parole, as well as having received numerous requests for legal advice on parole. Her overall picture was that there was confusion about the differing policies surrounding parole in South Africa. Her presentation highlighted the facts that parole policies were not being applied uniformly, which lead to instances of litigation against the DCS, transfer requests to more lenient parole boards, and co-accusers being released at vastly different dates. Prof Sloth-Nielsen insisted that the proposed amendment to let the Minister on Correctional Services to decide on parole terms would add a third confusion. This was unconstitutional as it broke the separation of powers principle and violated the constitutional principle of consistency, as well as in effect re-introducing the credit system. Her suggestion was that the Department introduced a one-size-fits-all rule and that everyone (except life terms) would be eligible for parole after serving half of their term.

Discussion
Mr Bloem wanted members of the Committee to agree with the desire for consistency as they had seen the confusion concerning parole during their oversight visits to the prisons.

Bishop Tolo agreed that to ordinary individuals the parole administration was very confusing.

Prof Sloth-Nielsen made it clear that she confined herself to the issue of parole systems, as there was a lack of public confidence in the parole system, due to various high profile parole cases.

Adv Malebye, DCS, said that it was because of the confusion and litigation that the Department was amending this section of legislation. They did not want to apply a one-size-fits-all approach and their intention was not to shorten parole, but to bring consistency. With regards to constitutionality, she agreed that it would be unconstitutional for Department executives to determine sentencing however they were referring to termination of consideration for parole, whilst maintaining that the function of sentencing should be the court’s responsibility, as that was the role of the judiciary, but for the determination of parole it was fine.

The State Law Advisor, Ms Bongiwe Lufundo, was called upon to commen and she clarified the two issues. The amended section was introduced by the Department to empower the Minister for the consideration of parole. This was the period the offender should serve before being considered for parole (currently stipulated in the Act). The amendment bill was removing the function of the period the offender should serve before consideration of parole from the legislature and giving it to the executive. The state law advisors supported that since they did not see conflict. The second issue referred to the power taken from the court as it would have to consider the framework set up in Section 73 before granting parole with regard to life sentences. The first issue had no interference however with the second issue, they would have to consider whether they were really interfering by taking power from the court regarding life sentences. 

Mr Bloem said that according to the Committee there was interference as the Department of Justice and Correctional Services’ roles overlapped. The meeting was not saying the parole matter must be handed back to the Department of Justice, but neither must the Minster of Correctional Services have the last word in life-sentence parole matters alone.

Prof Sloth-Nielsen agreed with the Chair that for life sentences, parole should be handled by the minister and the National Council on Correctional Services. However, she reiterated, that should not be the practice for determinable sentences, as it was clearly not predictable and would not meet the constitutional point of consistency.

Centre for the Study of Violence and Reconciliation submission
Ms Amanda Dissel congratulated the DCS on their attempt to embody the spirit of the White Paper in the new Bill. However, the CSVR was concerned about the way the DCS seemed to be widening its mandate even further. The presentation raised concerns about the use of stigmatising terminology, the lack of definition of a ‘single cell’, looking at non-custodial services for the children of incarcerated mothers, as well as the same concerns as the previous presenter concerning parole. The CSVR called for a framework to deal with sexual offences within prisons, as the silence contributed to the problem.

Discussion
Mr Mahote queried Ms Dissel's reference to ‘international practice’ and asked for examples of countries where children were not kept within the prison facilities.

Ms Dissel replied that she could not cite examples offhand, but that particularly within the developing world, it had been agreed that the principle to keep innocent young children in prison with their mothers was not a good idea.

Mr N Fihla (ANC) agreed with the problems surrounding the determination of release of parole, but wished the minimum sentence for life preserved at 25 years as in the original act. Mr Bloem agreed with Mr Fihla.

Ms Dissel responded by noting that there was there was already a longer sentence for ‘lifers’ and their contention was not to prejudice them further with an increased minimum parole time.

Bishop Tolo, concerning visitation arrangements for foster children, gave the example of the rural areas where people say ‘my child is your child.’ He suggested that if we could all say that, we would not have a problem of orphans.

Ms L Chikunga (ANC) also asked for clarity surrounding the children visiting their mothers in correctional facilities.

Ms Dissel wondered whether the problem was different from rural to urban areas. Children without parents were a larger social problem that the Correctional Services could not handle, and should act in collaboration with the Department of Social Development. She pointed out that there were no special visitation facilities for children of incarcerated mothers, and asked the Department to look into it. The DCS could also make a difference by the facilitation of contact between children and their parents in prison.

Ms Ngwenya commented on the need to address sexual violence in prisons, saying that the Committee saw these problems on their oversight visits. She asked the presenter for CSVR’s recommendation on this issue.

Ms Dissel replied that people engaging in consensual sex within prisons were being punished when the law stated this was not a criminal offence. Conversely, where the sexual conduct was violent or coercive there were haphazard ways of dealing with it. Ms Dissel requested some legislation to be written for this issue, similar to the Prison Rape Reduction Act in the USA.

Adv Malebye asked for clarification on the reporting of sexual violence, noting that whether there was a clause there or not, the Office of the Inspecting Judge was accountable to report it. She asked if the CSVR wished the judge to investigate it now.

Ms Sinah Moruoane, Director of Social Work, DCS, appreciated the sentiment on children and said that there had been meetings in the Department that discussed the best surroundings for these children.

Mr Gustav Wilson, Director of HIV/Aids, DCS, spoke to the comments on sexual violence. He said that the Minister and Department had embarked on a process to report, support and train around sexual violence, and had adopted the anti-rape strategy. He admitted that there was however stigmatisation of offenders who reported cases of violence.

Ms Dissel concluded the discussion and said that the Jali Commission found that the current method of reporting on corrupt practices was inadequate and that an external inspecting function, housed within the Judicial Inspectorate was of paramount importance.

South African Prisoners Organisation for Human Rights submission
Mr Golden Bhudu, Founder and President of the South African Prisoners Organisation for Human Rights (SAPOHR), read his submission to the Committee. He raised the issues of a lack of information in the annual reports concerning HIV/Aids deaths and income from inmate labour. He spoke forcibly about the situation, and proposed that section 40(6) be repealed and prisoners be able to organise Workers Unions, as is the practice in other places.

Discussion
Mr A Ali-Shah commended Mr Bhudu for the passion and seriousness with which he spoke, yet he found his prescriptive voice disturbing and asked him to respect this opportunity and not to politicise the debate. Concerning the rights of inmates, he said a balanced approach was needed as the inmates were there because they had denied other people their constitutional rights.

Mr Bhudu responded by saying that this was about politics and as he was a prisoners’ rights activist, he would speak like one. He agreed with the need for balance and was not glorifying criminals and their activities, nor wished to condone denying the rights of the citizens.

Ms Chikunga gave the scenario of an unemployed person in a rural area who had a better life in prison than outside. In prison the person could now have a job, join a union and earn a salary to support their family from prison.

Ms Ngwenya mentioned a similar example of people breaking parole because they knew life was better inside. She asked for clarity in terms of the rights of inmates concerning forced labour, and wondered how they could get a balance of punishment and human dignity.

Mr Bhudu responded to these questions by stating that the Department of Labour was investing millions of rand in skills development in prisons. Some inmates did not take part, but those who did learned skills. However, their working conditions and labour rights were not upheld. To Ms Ngwenya, he added that forced labour is unconstitutional, and the DCS should be about correcting people, not profiting from forced labour. Mr Bhudu also stated passionately that it was a fallacy that prison was attractive and people chose to go there to get food and skills. He stated that we should make outside so beautiful that no one wanted to ever go inside.

Ms Z Nawa (ANC) wondered what would happen if prisoners went on strike.

Mr Mahote reminded Mr Bhudu that here the persons being considered were not workers, but inmates - people who had broken the law and did not care about other’s human rights.

Mr Fihla sympathised with Mr Bhudu but noted that the idea of 75 000 people on long term sentences for serious offences being allowed to go to work was impossible and unrealistic.

Mr Bhudu agreed that people should be arrested if they had committed a crime. Although they did forfeit certain rights, there were still other rights enshrined in the Constitution and the White Paper. He made note of the fact that South Africa was liberated by unions, and that inmates in prisons can be productive.

Mr H Cupido (ACDP) was in favour of developing people and skills, but asked Mr Bhudu at what stage the DCS should allow prisoners to go and work outside.
 
Mr Bhudu clarified the question by saying that the inmates did not work outside in private companies, but within the correctional facility. However, they needed a victim’s rights charter and organisation.

Bishop Tolo agreed with the other speakers concerning the need to be careful when dealing with rights of offenders.

Mr Wilson, DCS, commented on statistics of inmates who had died from HIV/AIDS by saying that the Department adhered to the National Department of Health regulations and reported on deaths as they stipulated. The Department was not in denial and did not withhold reports.

Mr Bhudu concluded by stating that one was able in the past to ascertain these details from the DCS Annual Report and now they were not there.

Aids Law Project and the Treatment Action Campaign joint submission
Mr Jonathan Berger of the Aids Law Project noted that the Cape Town based Sonke Gender Justice Campaign had authorised this presentation alongside the ALP and the TAC. Mr Berger’s oral submission highlighted three issues from the written submission: the role of the Judicial Inspectorate, the rights of inmates and the rights of Correctional Services members. Mr Berger raised issues concerning the continuity of health care for offenders upon release, queried the meaning of ‘medical parole’, and wanted less restrictive means to address the dismissals of members. Concerning the last minute changes pertaining to the Office of the Inspecting Judge, the ALP’s fundamental problem of the Office being staffed by governmental employees had still not been corrected. It had to be a separate body that conducted itself separately. He requested time to look at the new changes in writing so as to speak to them properly.

Discussion
Mr Bloem confirmed that Mr Berger would get the amendments and deletions from the Department to look at properly.

Ms Chikunga wondered whether the continuity of medical care after release meant release at the completion of a sentence, or for parole, or for community supervision.
 
Mr Berger responded and said that he was primarily referring to the situation when someone had completed their sentence. This concern was particularly with regards to ARVs and other chronic treatment. If the person was not released with an appropriate referral it could result in the person defaulting on treatment, with huge issues for their survival and that of public health. Mr Berger said that the Bill stipulated this with respect to referrals of inmates, but not upon release.

Mr Bloem asked if Mr Berger was saying that it was the DCS’s responsibility to keep on providing medication.

Mr Berger replied that it was Government’s responsibility, so the DCS needed to make sure that upon release the person was in a position to access continuity of health care from a public health care facility, thereafter the Department of Health takes over.
 
Mr Wilson, DCS, informed the Committee that upon release inmates on treatment were transferred to the nearest health facility and provided with a month’s supply of medication.

Mr Paxton, DCS, commented on the Office of the Inspecting Judge and assured Mr Berger that the entity to whom a person was seconded to was the entity to whom they were responsible. This had been the practice for the last ten years, and having Department members seconded to the Judicial Inspectorate did not compromise independence.

Mr Berger repeated his stance that staffing the Judicial Inspectorate from the public service created conditions for interference. He was glad to hear of the medication practice and wished that it were in the legislation.

South African Human Rights Commission
Ms Judith Cohen expressed the apologies of the Chairperson and presented their submission. Her three issues were common ones and concerned the Judicial Inspectorate, the separation age of children and incarcerated mothers and the Bill’s definition of disability. Concerning parole and life imprisonment, she commented that it was problematic to give the minister the power to decide on life imprisonment. That was the role of the judiciary, and guidelines were needed that were constant and certain and open to public scrutiny. There were guidelines in the Kader Asmal report concerning the Review of Chapter 9 institutions to help with ensuring independence. She also referred to the Optional Protocol to the Convention Against Torture (OPCAT) concerning torture and showed that the Judicial Inspectorate would be the best placed institution to carry out these obligations, and seconding personnel would not ensure that the international OPCAT obligations were met.

Discussion
Ms Chikunga queried why she had heard nothing about the recent investigation on corruption and fraud with regard to the Judicial Inspectorate.

Ms Cohen stated that the investigation was not something they looked at specifically.

Ms Ngwenya asked about the SAHRC’s position with regard to human rights and the use of cameras in the cells to assist in prosecuting violence in the cells.
 
Ms Cohen said that cameras in prison were a difficult topic as there were conflicting rights in respect of privacy, dignity and discrimination, and a more thorough analysis would have to be done. She would welcome other alternatives and ideas.

Adv Malebye, DCS, noted the remarks on the confusion surrounding parole and asked for an explanation about the definition of disability. Concerning the secondment of staff, the motivation to move the executive functions from the judge to CEO was to align the Inspecting Judge with the Constitution. If they wished to treat the Inspecting Judge as a Chapter 9 institution (as in the Kader Asmal report) then separate legislation would be needed for the Inspecting Judge.

Ms Moruoane, DCS, assured Ms Cohen that every offender is assessed to make sure the best interest of their child is upheld.

Ms Cohen informed the Department that the term ‘dumb’ was derogatory and ‘speech impediment’ is a better term.

Lastly, in reply to Adv Malebye, Ms Cohen said that the SAHRC did not have objections to the creation of a CEO position in the Inspecting Judge, but as their budget came from the DCS, the staff could not also be DCS employees. The Kader Asmal report grappled with the question of independence especially with regard to funding, and this is an issue that needed to be considered.

Legal Resource Centre submission
Mr William Kerfoot, Attorney, expressed similar sentiments to those already raised concerning the Inspecting Judge. He described the Bill as retrograde and anomalous as it appeared to limit the Judicial Inspectorate immensely. He surmised that the DCS regarded the independence of the Judicial Inspectorate as a threat, where it actually provided protection for the DCS and the inmates. Mr Kerfoot pointed out that the White Paper said in mandatory terms that the Correctional Services should be subject to independent investigation. He called for the Bill to be changed to allow the Inspecting Judge to appoint independent staff.

Discussion
Ms Chikunga again asked about the report on corruption and fraud currently being investigated by the Inspecting Judge.

Mr Kerfoot agreed with the finding of the Jali Commission and said that the investigation should be funded and carried out from the Office of the Inspecting Judge.
 
Mr Bloem fully agreed with Mr Kerfoot that the Inspecting Judge was to be independent and strengthened, not weakened.

Adv Malebye, DCS, noted the submission about financial independence. She stated that the DCS was not against independence and the amendments were made to comply with constitutional imperatives.

Mr Paxton, DCS, maintained that the Judicial Inspectorate was not a threat to the DCS, and pointed out that there were no proposals on how to deal with financial and functional organisation.

Mr Kerfoot concluded that he would be happy if there was assurance that the Office of the Inspecting Judge could return to its previous job and still keep the constitutional imperatives of the separation of power.

Department of Social Development (DSD) input
Ms Musa Ngcobo-Mbere, Director of Childcare: DSD, outlined the guidelines stipulated by the Constitution pertaining to the rights of children. In the case of a child of an incarcerated parent, that child falls under those requiring alternative care, and this should be effected through the Children’s Court. She proposed that the age of two years was a sufficient age to separate mother and child, though preparation for separation needs to have started before that. Her department was supporting the DCS in their work.

Discussion
Ms Chikunga asked about a one-size-fits-all age of two years and wondered if there would be a problem if the mother was breastfeeding her two year old.

Ms Ngcobo-Mbere repeated that the DCS and DSD staff would work together earlier in preparation so that at two years, separation can happen. It would also be looked at case by case.

Ms Ngwenya worried the about shortage of social workers, especially since the limit had been changed to two years.

Ms Ncgobo-Mbere commented concerning the social worker backlog and stated that the Department of Social Development was issuing bursaries for social workers, and recruiting and training auxiliary social workers.

The Chair thanked everyone for attending and assured the presenters that this was not just a talk shop. The presentations would be deliberated on at the 7 September meeting, and all were welcome to attend. He noted that there were two issues that had come out strongly from all sides: that the independence of the Inspecting Judge was crucial, and that parole must be dealt with and made consistent.

The meeting was adjourned.