Parole and Correctional Supervision status report after Scott-Crossley & Waterkloof 4 controversy

Correctional Services

13 March 2012
Chairperson: Mr V Smith (ANC)
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Meeting Summary

The Department of Correctional Services (DCS) status report on parole and correctional supervision focused on two incidents that were deemed important by the Portfolio Committee.  The first was the granting of parole to only two of four offenders in the Waterkloof case. All four had been charged with murder. The DCS reported that five members of the Parole Board at Zonderwater centre had been suspended. An investigation had been launched, and there would be charges related to the overstepping of bounds, and negligence. It was part of parole policy that those sentenced together had to be considered for parole together.

The second matter was that of Mark Scott Crossley and Simon Mathebula, both originally found guilty of murder, but Crossley had been granted parole and Mathebula not.

The DCS indicated that the Case Management Committees (CMCs) were responsible for management of parole consideration through a sentence plan and earmarked programmes from the onset of a sentence. There could be no consideration for parole without a CMC recommendation. In the Waterkloof case, the CMC would not recommend, and yet the Parole Board had granted parole. Another irregularity was that parole was not to be granted for aggressive crimes, and the two who had been granted parole, had been found guilty of murder.

The status report provided clarity about the required portion of sentence to be served before parole; implications of the Van Wyk and Van Vuuren rulings for parole for lifers sentenced before 2004, and the qualifications of Parole Board members. Challenges were identified as being the 2x12 shift system, vacancies and inconsistent decision making by Parole Boards.

In discussion, the DCS was confronted with the fact that Scott Crossley, a white man, had been granted parole, while the black man Mathebula had not. The Chairperson asked if that was to be the end of that story. He asked for names of the five suspended Parole Board members. There were questions about the DCS interpretation of date of release. There were remarks about inconsistent decision-making, and the advice that the Review Board had to set parameters. It was remarked that unavailability of victims and lack of programmes offered could count against offenders through no fault of their own. It was suggested that Parole Boards acted contrary to parole policy because the DCS lacked management systems that could inform Head Office about parole decisions. There was grave concern about the fact that three key aspects of parole policy had been overlooked in the granting of parole to two of the Waterkloof case offenders. The Chairperson urged that the DCS not rely on its internal legal unit to take that matter on review. The DCS lacked internal legal capacity. There were questions about the qualifications required to serve on a Parole Board, and about the kind of charges that the five suspended Parole Board members would be facing. The Chairperson expressed grave concern about the fact that resources could grant access to consideration for parole, as in the case of Crossley and Mathebula. Crossley had had the resources to have his charge converted from murder to attempted murder, which had left Mathebula alone responsible for a dead body, as he put it. There was racism in that, which had to be talked to. It also proved that people with resources had better access to justice. Money was needed to access justice. Mathebula did not spend money and had to spend his life in jail. There were questions about who appointed CMC Chairpersons, and the DCS time of response to complaints about parole. There was a question about penalty and credit systems. The DCS had to face general criticism about management systems for parole. A DA member proposed that there had been conspiracy involved in the granting of parole to only two of the four offenders in the Waterkloof case. The DCS was asked to provide in a future meeting, information about the qualifications of the 235 CMC chairpersons.

Meeting report

Introduction by the Chairperson
The Chairperson remarked with regard to parole, that the Department of Correctional Services (DCS) had to educate inmates about matters raised with the Portfolio Committee. He referred to the Waterkloof incident, where four people had been arrested for the same crime and had been sent to the same correctional centre. Yet two had been granted parole, and the other two not. There was also the matter of Mark Scott Crossley and his co-accused offender Mathebula, who had locked someone in a lion cage. Crossley had been granted parole while Mathebula still languished in prison.

Inconsistencies had to be explained. There was also confusion about the portion of a sentence that had to be served to become eligible for parole, whether that was four fifths, one half or one third of the sentence. He asked about implications of the Van Wyk and Van Vuuren judgements about lifers who had been sentenced before 2004. At Leeukop centre, a kitchen worker had been appointed as a member of a Case Management Committee (CMC).

The Chairperson noted that the DCS had listed challenges as being the 2x12 hour shift system; vacancies; inconsistent decision making, and victim participation. The DCS had to tell the Committee about its capacity to deal with those challenges. Five Parole Board members had been suspended after the Waterkloof incident. He asked about charges against them. He was concerned about the fact that the Crossley and Mathebula incident had proved that those who were well resourced could get parole easier.

DCS status report on Case Management Committees, Parole Boards, Correctional Supervision
Mr Zacharia Modise, DCS Chief Deputy Commissioner, said that the Waterkloof matter was under investigation, with two statements that still had to be made. The Chairperson, Vice Chair, Secretary and three members of the Parole Board at Zonderwater, had been suspended. Two of those members were Chairpersons of Case Management Committees. The Parole Board was under investigation and there would be charges related to overstepping of bounds and negligence. Parole Board policy dictated that those sentenced together, had to be considered for parole together.

Mr Modise noted that the parole process properly had to start when an inmate was classified and assessed at the start of the sentence. Programmes had to earmarked for the inmate. A case review team had to review the sentence plan. When the parole consideration date drew near, the Case Management Committee had to recommend parole or correctional supervision. The Parole Board had to approve or reject the CMC recommendation. But the initial recommendation was made by the CMC. CMC effectiveness was hence crucial for the process. There were many inmate complaints from all over. There could be no consideration for parole without a CMC recommendation.

Mr Modise remarked that the problem with the Waterkloof case had been that the CMC would not make a recommendation, on the grounds that mandatory time had not been served. The process should rightly have stopped there, but it went to the Parole Board. If the CMC found someone unsuitable, it had to stop right there. Another irregularity in the case was that all four offenders had been convicted for murder. Offenders found guilty of aggressive crimes were not candidates for parole consideration.

Mr Modise noted that a booklet had been printed about eligibility for parole and correctional supervision. Regarding the portion of the sentence that had to be served, he said that the old Act had prescribed one third of sentence, with penalising factors reckoned in. Penalising factors had been done away with, because it was reasoned that the courts had already penalised an offender. Everyone had to be considered for parole after one third served, although in practice one half was sometimes required. There were Parole Boards who would decide to add another 6 months to that. DCS policy was to adhere to the period the court had decided upon. If the CMC or Parole Board insisted on a review, the matter had to go back to court.

In the Van Wyk judgement, Van Wyk had taken the DCS to the Constitutional Court because lifers were not given credits. That system had been abandoned because it had been inconsistently applied. Van Wyk had claimed for credits.
Based on that court decision, lifers sentenced before 2004 could become eligible for parole after 13 years and four months.

Qualifications of Parole Board members were a challenge, as were the insufficiency of sentence plans. The capacity of CMCs was not up to standard. They struggled to deal with large numbers. That was why the DCS had decided that the CMC and the Head of Centre should be present from Mondays to Fridays, and not work according to the 2x12 shift system.

Discussion
The Chairperson asked Ms Kunene about the matter of Mark Scott Crossley and his co-accused Simon Mathebula. The offender released was white. The black was still in prison. He asked if that was to be the end of the story.

Ms S Kunene, Deputy Commissioner, Social Reintegration, replied that Crossley had been considered for parole, and Mathebula not. They had been accomplices and ought to have been considered together. The DCS wanted to allow Mathebula legal representation.

The Chairperson asked for names of the five people suspended as a consequence of the Waterkloof 2 matter.

Mr Modise supplied the names of Adv H Theron, Chairperson; Mr Sethedi, Vice Chair; Ms Mothubatse, secretary; Mr Du Preez and Mr Mdaja.

Mr J Selfe (DA) referred to a series of court judgements where Parole Board failure had been taken on review. He asked how date of release was defined. It was an issue for the Waterkloof 2. He asked if it referred to a release date, or the date on which an offender would be eligible for parole. There had been legal uncertainty in cases of appeal to the Supreme Court. The matter could be placed beyond dispute in the statutes to avoid uncertainty and ambiguities. As Mr Modise had indicated there had been inconsistency of decisions made at Pollsmoor and Drakenstein. The Parole Appeal Board had to be involved. It could set parameters.

Mr Modise responded that the date of release was determined as the date on which the sentence would have been served in full. If the sentence were four years, there would be eligibility for parole after two years. After the serving of two years parole, the offender would be finally released. Parole amounted to serving a part of the sentence on the outside, in the community. There were a number of ambiguities with regard to interpretation of the legislation. If the intention of the legislator was not clear, the DCS returned to the legislator. There were straightforward ways of implementing the Act. As regarded the Waterkloof 2, the legislation was clear that all four offenders should have been excluded from consideration for parole. The law stated that an application for conversion of sentence could be made if no more than 5 years of the sentence remained. In the Waterkloof case, more than 5 years still remained. The Parole Board had been wrong, and therefore there was a disciplinary enquiry.

Mr Modise agreed with Mr Selfe that there were discrepancies regarding the Review Board. The DCS was in the same boat as the Committee in that regard. The Department would only pick up in the media when an offender had been released. Officials could not be relied on to inform the Department first. The Review Board was chaired by a judge. Had the Department been informed in time about the Waterkloof matter, it would have taken that decision to the Review Board. The Review Board could help set parameters.

Mr Selfe continued that allegations had been heard during oversight, that the Case Management Committee (CMC) would say that an offender had to complete programmes to be considered for parole, or interact with victims. But the victims could not be found, or programmes were not offered. Parole dates had been pushed back. It was not the offender’s fault.

Mr Modise replied that if a Case Management Committee was doing its work right, it had to check after six months if an offender was doing the programmes called for in the sentence plan. It happened that the DCS would only realise when an offender came up for parole consideration, that no rehabilitation had yet taken place. The Department was currently saying to Parole Boards that it could not penalise an offender because of CMC incompetence. There was a unit that had to assess the profile of an offender eligible for parole. Programmes could also be done outside, at a community corrections office. Excuses from parole officers that an inmate still had to complete programmes, held no water. It was not the responsibility of the offender to see that programmes were completed.

Mr Selfe asked about lifers sentenced before 2004, who could qualify for parole after 13 years and four months in terms of the Van Wyk court ruling. He asked if that meant 20 years minus credits.

Mr Modise responded that the Van Wyk ruling posed difficulties. Its implications had been explained to only a few officials. 13 years and four months was adopted as a benchmark, to prevent the DCS being taken to court again. It could not say why it had done away with credits. The 13 years and four months was for the purposes of consideration for parole. The Parole Board applied to the Minister.

Mr Selfe noted that the date of release as at the end of the full sentence, had not been the interpretation in the Waterkloof case. The question was why the magistrate had taken the date of eligibility for parole as the release date, and why the DCS had not been informed. He asked why there were no management systems in place to prevent it from occurring. Proper procedure indicated that people had to be informed up to the National Commissioner.

Mr Modise replied that the management system to inform at all levels, could only work if someone put information into it. There had to be a dashboard of crucial information on a daily basis of who had been released and how, to generate reports. There was a management challenge at grassroots level. Teams were sent to see if information was being provided, and to attend to challenges. In the Waterkloof case there was incompetence, with submissions from legal representatives taken as it was attached to the court application. The date of release interpretation of the legal representatives had been accepted. The DCS would dispute that. It would be taken on appeal. He could not disclose more because the matter was sub judice.

The Chairperson noted that the Committee accepted that. He asked how it could be possible that the court had overlooked three aspects, namely that the Waterkloof Four had committed a grievous crime (murder) and were hence not eligible for sentence conversion; that all four had committed the same offence and had to be approached as a group, and that they did not qualify in terms of the release date as the DCS interpreted it. He said that it was not just and fair. There had been a lack of consultation about the release date, and the fact of murder had been overlooked. He asked that the DCS employ capable people to appeal this. He did not believe that the DCS had the internal legal capacity for that. The Portfolio Committee was equal to the Judiciary, and could rightfully object to such a case of injustice.

Mr Modise replied that the DCS shared the Portfolio Committee’s concerns about those matters. The Case Management Councils were not up to standard to uphold policy. It would be attended to.

Mr Modise added that a legal firm would be employed for the appeal, as the legal services unit was indeed not effective enough.

Ms Ngwenya asked for more clarity about offender Mathebula, who had not obtained parole like his co-accused Mark Scott Crossley. She asked what would be done to ensure that something similar did not happen again. Mathebula had the right to lodge a complaint.

Ms Ngwenya asked why time was being wasted with the investigation of the suspended Parole Board members. It had been a case of criminals looking after other criminals. She asked about offenders who were eligible for parole in terms of one third of sentence served who were being ignored, as were some who qualified for earlier parole after 13 years and four months.

Mr Modise replied that an audit would be done of all those cases. The system would be cleaned and names given.

Mr L Max (DA) asked about qualifications for members of Case Management Committees and Parole Boards. Costs and the freedom of people were at stake.

Mr Modise answered that members had to have a three-year degree or diploma, and some legal background. Competencies were required to manage and interact with people. The member had to be familiar with the Correctional Services Act. It counted to be a prominent member of a community. An application form and an interview had to be completed.

Mr Max asked what the Parole Board members had been suspended for, whether it was collusion, corruption or conspiracy.

Mr Modise replied that he could not go into depth as the matter was sub judice. But he could disclose that negligence would be looked at in the investigation.

Mr Max noted that Crossley and Mathebula had both been charged with murder. Crossley had appealed against conviction, and the charge had been changed to attempted murder. He asked if he had that right. It meant that the two of them were then no longer in for the same crime.

Mr Modise replied that Crossley’s charge had indeed been changed to attempted murder. The Case Management Council had to find a way to help Mathebula.

The Chairperson remarked that there had to be an appeal, also because it proved that people with resources had better access to justice. That fact was not to be diluted. There was no equal access to justice. There could not be two charges of attempted murder and a dead body. The implication was that it had become impossible for Mathebula to have his charge converted to attempted murder. Money was needed to access justice. Mathebula did not spend money and had to spend his life in jail. The racism in that situation had to be talked to.

Mr M Cele (ANC) asked who appointed chairpersons of CMCs and who monitored them. DCS Head Office did not appear close to the CMCs. He asked how often the Parole Boards sat. Slide 8 indicated that Parole Boards were working in spite of vacancies. He asked what happened when there was no quorum.

Mr Modise replied that the CMC was appointed by a Regional Commissioner or Area Commissioner. It was monitored by the Head of Centre and the Area Commissioner. CMCs met almost every day. The CMC was the core of every centre, as it looked after development and rehabilitation. If it did not work well, there were challenges and complaints. If the CMC did not consider eligible parole dates it was dysfunctional. The centre could become ungovernable and it could lead to riotous behaviour. Systems had to inform all management layers. Information arrived slowly at Head Office. Systems had to be relooked for capacity to pick up challenges.

Ms Kunene added that a full Parole Board complement included all members, a Chair and Vice Chair, and co-opted SAPS members. Three members were needed for a quorum.

Ms Ngwenya asked about time taken to respond to complaints. It had to be possible for an inmate to draw attention to a parole complaint in the morning, and to see the Head of centre about it at 12h00.

Mr Modise replied that there was a manager at every centre to resolve complaints. They were raised on a daily basis. If the Head of Centre could not resolve complaints he could refer them, but he had to return within 7 days. Complaints had to be registered and signed by inmates for the system to function 100%. Resolution of complaints was the responsibility of the Head of Centre. Properly he had to visit all cells every day. But in some centres one would ask inmates when they had least seen the Head of Centre, and they would reply that it had been three or four months before.

The Chairperson said that it was clear why Scott Crossley was eligible to appear before a parole board, but not clear why parole had been granted. He asked if the Committee could look at his file to see if he had completed programmes. If not, the question was what would be done to the Head of Centre at Barberton. He asked what had been put in place at Barberton, after the suspension of the 5 persons.

Mr Modise answered that it had been arranged for Baviaanspoort, 40 kilometres away, to take over functions. The Gauteng manager would monitor the situation.
The Scott Crossley file would be made available.

The Chairperson noted that there were 235 CMCs. He asked how many CMC chairpersons had the right qualifications. They were critical. He asked if the Leeukop CMC chairperson was still the same. That person was not qualified. He asked what would be done.

Mr Modise replied that the DCS would return with information about qualifications. The former Leeukop CMC Chairperson was currently employed elsewhere.

Mr Max remarked that the credit and penalty systems had been discarded. It provided consistency to go straight to the Act. He asked if it was so that participation in programmes counted in the parole applicant’s favour.

Mr Modise replied that tit had been decided to do away with penalties, because the courts already imposed penalties. Credits gad been done away with, but that did not mean that programmes did not count. The DCS was legally bound to compel inmates to do programmes. It was compulsory for an inmate to complete a pre-release programme. Those guilty of aggressive crime had to do anger management programmes. It could not amount to a penalty if programmes had not been provided. Offenders could do programmes in the community. Bad conduct inside the centre could lead to not being considered for parole.

The Chairperson noted that Siyande Mapasa at Leeukop had gone to court to get the DCS to do things, which had not been done. Management systems were not in place. Saxon Dlamini had not been able to go to court. He asked if the DCS had a tracking system of court decisions. He asked how the DCS managed court decisions when inmates took them to court, like Mapasa.

Mr Modise replied that systems had to be strengthened. There were problems with officials. There had to be a system in place to manage cases. A Senior Counsel had to be appointed, and information about decisions had to be provided. The legal services unit was not effective enough. Systems at the National Office had to be strengthened. If the court said an offender had to go before a Parole Board, it had to be done. Offenders had to be listened to. An offender at Modderbee had called him to say that he had a 16-year sentence, but the Head of Centre had said that it was 20 years. He had taken the Head to court, and he had come with an amendment. It was necessary to listen to offenders and be humane, but officials were not prepared to do so. The majority of Heads of Centre did listen, but the DCS wanted them all to do so. If not, it could lead to riots.

Mr Selfe said that he wished to propose what might have transpired with the Waterkloof 2. The Parole Board had waited until just before Christmas, and had then taken the illegal decision to a magistrate who would retire within a year. It looked like conspiracy to him. The matter had to be taken on appeal, with the proper facts presented.

Mr Max asked about questions that had not been attended to yet.

The Chairperson told him that the DCS had to be called to a full meeting devoted solely to outstanding matters. Questions would be sent to respond to.

The Chairperson adjourned the meeting.

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