Correctional Matters Amendment Bill [B41-2010]: Clause by clause deliberations

Meeting report

Correctional Matters Amendment Bill (the Bill): Further deliberations
Chairperson’s Opening Remarks
The Chairperson stated that the purpose of the meeting was to help the Committee come to an understanding on certain issues around the Correctional Matters Amendment Bill (the Bill). He reiterated that it should be seen as a planning session to engage on the draft and suggest amendments. This Committee would write a report, which would be submitted to the National Assembly (NA), who in turn would submit the report to the National Council of Provinces (NCOP) for comments and amendments. The report would come back to the Committee, which would then agree or disagree with any proposed NCOP amendments. The Bill would then be submitted for final adoption. This Bill, according to the presiding officer, must be concluded by 31 March 2011, and if there were to be any new amendments then the Committee would have to communicate with the Speaker.

Mr J Selfe (DA) noted that there were consequential issues that would flow from any further amendments to the Bill.

The Chairperson agreed with Mr Selfe. He added that the Committee had received a second set of comments that would empower the Committee in its debate with the Department of Correctional Services (DCS or the Department).

The Chairperson asked the Members to suggest how the Committee should engage with the Department on the Bill.

Mr Selfe suggested that the Committee use the original Bill as a guide, going through each clause to afford the Department the chance to give the motivation for its amendments.

Mr S Abram (ANC) noted that there had been numerous inputs from civil society and non-governmental organisations (NGOs). He asked whether the Parliamentary legal experts would be present, because he was weary of the Department’s legal experts. Furthermore he stressed that the job of the Committee was to find a balance between what complied with the Constitution, what the DCS wanted, and what was in the best interests of society.

Mr L Max (DA) asked the legal experts whether they had any concerns.

Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Advisor, stated that the law advisors had assisted the Department in drafting the Bill.

The Chairperson asked for comment on the previous discussions around involving a judge, despite the fact that the Independent Complaints Directorate (ICD) had a role.

Mr Makabeni responded that it would be a policy decision.

Mr Abram noted that there was need to take the Mental Health Care legislation into account, as it would impact on detainees. He asked whether the legal experts had considered possible implications and impacts.

Mr Max stated that there was need to look at the provision that related to the powers of the judge seriously. He suggested that the definition be reviewed.

Mr Abram stated that the facilities that were used to detain people awaiting trial belonged to the DCS. The main issue was to decide what would be in the best interests of justice, and where an inmate, if something happened, would get the best access to being heard. He asked about the area of operation for the ICD, and said that involving this body would be anomalous, as it reacted to complaints after the fact. An inmate should be able to lodge an immediate complaint.

The Chairperson responded that the issue was broader than the ICD.

Mr Selfe noted that the approach that the Chairperson had articulated was correct.

Ms W Ngwenya (ANC) asked whether the South African Police Service (SAPS) would be ready for the new amendments, and whether the DCS was in consultation with SAPS.

Mr Makabeni said that the Committee should include its concerns on the role of SAPS in a report, saying that there could well be unforeseen circumstances, and that the DCS must have time to investigate, consult with the JCPS Cluster, and then report back to the Committee.

Mr Max stressed that there was no heavy additional burden on SAPS, since SAPS was already supposed to provide humane and decent detention facilities.

The Chairperson noted that if the situation was bad in urban areas, it was likely to be even worse in rural areas where there were no DCS facilities.

Mr Selfe suggested that the Inspecting Judge produce a report, which would then be tabled before Parliament. Such a report would help the Committee exercise its oversight responsibility more efficiently

Mr Abram asked whether the legal experts were aware of any unintended consequences.

The Chairperson stated that the Committee had some time to debate the issue.

Presentation on Correctional Matters Amendment Bill- 2010, Clause by Clause analysis.
Ms Lirette Louw, Special Advisor to Department of Correctional Services, stated that the Bill sought to improve the administration of three key areas of corrections:  namely, to strengthen the parole system in general, to provide for a new medical parole system, and to provide further for the management of remand detainees.

She proceeded to outline the clauses of the Bill, as they now appeared in the latest draft (see attached document).

Clause 1
Ms Louw stated that the definition of “inmate” had been amended and new definitions of “remand detainee”, “remand detention facility” and “remand detention official” had been inserted. The definition of inmate had been amended to mean “any person, whether convicted or not, who is detained in custody in any correctional centre or remand detention facility or who is being transferred in custody, or is en route from one correctional centre or remand detention facility to another correctional centre or remand detention facility”.

The definition of remand detention official was amended to reflect “an employee of the Department appointed under Section 3(4) at a remand detention facility or transferred to a remand detention facility”.

Mr Selfe stated that the definition, in sub-clause (a), of “remand detainee” as suggested by the National Prosecuting Authority (NPA) made considerable sense, since it sought to distinguish a person still involved in a court action from someone who had been convicted or sentenced. He thought that there were better ways to draft the clause. He pointed out that there were three categories, which he outlined as: (i) people who had appeared before the court of law but who had not yet been convicted, (ii) people who had been convicted, but who had not yet been sentenced and (iii) people who had been convicted and sentenced. He pointed out that the last category of people were not to be regarded as remand detainees. He suggested that the definition should be more explicit.

Ms Louw responded that the sub-clause was specially amended so that people who had been sentenced and convicted were not included.

Mr Selfe stated that he was not saying that sub-clause was wrong but still felt it could be defined more clearly.

Mr Selfe added that he was uncomfortable in confining a police cell or lock up for the purposes of Sections 115 and 117. He therefore suggested that the phrase “for the purpose of sections 115 and 117…” be removed.

The Chairperson asked why the reference to Sections 115 and 117 were needed.

Mr Louw responded that this situation had always pertained. She added that if the definition of “remand detention facility” was extended, then the DCS would be extending into the SAPS jurisdiction, which meant that some of the provisions would then have to be implemented by SAPS, to whom DCS would be deemed to have extended its powers.

In response to the question of how the DCS handled inmates who were under the care of the SAPS, she referred the Committee to page 13 of Standing Order 361. Ms Louw further added that the DCS had not yet consulted with the SAPS.

The Chairperson asked how the Committee could ensure that what it was discussing would be implemented. He asked whether SAPS was ready to implement the amendments. The Chairperson stated that the issue was not about the ICD, but it was about human rights. The ICD dealt with abuses, and not generally with human rights. He added that either the Judicial Inspectorate of Correctional Services (the Inspectorate) or the ICD would have to have their jurisdiction increased.

Ms Ngwenya stressed that she was worried about enacting a law that was not clear. She too wondered whether the SAPS would be ready for any amendments that the Committee would make, stressing that the Committee must ensure that the Act was implemented. She thought it would be useful for DCS and SAPS to sit together and discuss the issues.

The Chairperson noted that one problem was the lack of time frames.

Ms Louw responded that the JCPS cluster was consulted when the Bill was introduced, and so the whole of the JCPS cluster was ready to implement the Bill. However, if the Bill was to be expanded to include police cells, then the SAPS would not be ready. SAPS should take responsibility for people under their care, as they had the same Constitutional obligations as the DCS.

Mr Loyiso Jafta, Representative: Task Team, Department of Correctional Services, stated that the concerns that the Committee had raised were not only confined to police stations. Mr Selfe had made a good point. If an inmate was in Court, then the Department of Justice assumed responsibility for the inmate at that time. The issue was broader than SAPS.

Mr Max did not agree that the Department of Justice would be in control of inmates in court. He stressed that the buildings could belong to the Department of Justice but either the SAPS or the DCS were responsible for the detainees.

Clause 2
Ms Louw stated that this clause amended Section 3(2) of the Correctional Services Act (the Act), which dealt with the establishment, functions and control of the Department. Subsection (2) was being amended to make provision for the management of remand detainees.

Clause 3
Ms Louw stated that amendments were made in relation to Sections 5(1) and (2) of the Act. Section 5 dealt with the establishment of Correctional Centres. Subsections (1) and (2) were amended to provide for the establishment of remand detention facilities.

Mr Abram asked whether the DCS had looked at the impact of Clauses 3(b)(ii)(b), and particularly the impact on the human rights of detainees.

Clause 4
Ms Louw stated that Clause 4 amended Section 10 of the Act, that related to clothing and bedding provisions. Subsection (2) was being deleted, as it was now included in Clause 9 (the new Section 48).

Mr Selfe noted that, according to the proposed amendments to Section 48, a remand detainee would not appear in court in a uniform. He stressed that the DCS was removing, from the principal Act, a provision that said remand detainees could retain or acquire appropriate clothing or bedding. He asked how it was possible for a remand detainee to attend court in his or her own clothes if they had been removed on arrest. He further asked why there was a restriction on bedding.

Ms Louw responded that every reference in the Act to “inmate” included a remand detainee. The DCS still had the responsibility of providing bedding to all “inmates”. Ms Louw stressed that the DCS intended to add a subsection (2) that would cover the issue of clothing.

Ms Ngwenya asked why a law that related to clothing was being enacted.

The Chairperson responded that the issue would be debated at a later stage.

Mr Abram asked whether there were any types of materials or resources available to remand detainees so they could prepare for their defence.

Clause 5
Ms Louw pointed out that this clause amended Section 17, which related to access to legal advice. There had been a change in terminology.

Mr Abram stressed that a policy or guideline could be changed at any time. He added that the real question was how many people were in a position to mount a challenge. Mr Abram proposed that the Act must be changed to become more user friendly, so that remand detainees would be aware of their basic rights.

The Chairperson asked Mr Abram whether the phrase remand detainee “must be provided with opportunities and facilities to prepare their defence” was inadequate.

Mr Abram responded that the phrase was inadequate.
Mr Makabeni felt that the clause was sufficiently clear.

Ms Louw pointed out that the obligations were not only in the policies, but were also included in the regulations.

Clause 6
Ms Louw stressed that the clause amended Section 38 of the Act, which dealt with the assessment of sentenced offenders upon admission. It was proposed that an inmate should be assessed in order to determine his or her restorative justice requirements. There were technical amendments in subsections (a) and (b).

The Chairperson asked whether certain proposals made could not be taken on board. He asked whether the DCS had considered making provision for both sentenced and unsentenced detainees, to cover concerns about their vulnerability and sexual exploitation.

Ms Louw responded that the issue was covered under security classification.

The Chairperson asked whether security of classification addressed the issue that Mr Selfe had raised, or whether the phrase was just too wide. He asked whether vulnerable inmates must be considered. He added that the Committee would be much happier if the issue was classified in a much better way, rather than as a security classification.

Clause 7
Ms Louw stated that the clause amended Section 39, which dealt with the commencement, computation and termination of sentences. It amended subsection (2)(a), by seeking to regulate the serving of any further sentence imposed on a habitual criminal, in order to give effect to the order in Mans v Minister of Correctional Services [2008] JOL 21381 (W). Furthermore, Section 39(3) was amended by the deletion of the reference to extradition and the insertion of a reference to absconders. She explained that the principle whereby sentences were postponed, in the case of interruption, was not related to extradition but rather to the date of escape or absconding.

No comments were made by the Committee.

Clause 8
Ms Louw explained that this clause amended Section 42 of the Act, which dealt with the powers, duties and functioning of the Case Management Committee (CMC). Clause 8 amended the content of the report that must be compiled by the CMC for submission to the Correctional Services Parole Review Board (CSPRB), by deleting paragraph (v). This was because there was no longer any difference in the way in which habitual criminals and other offenders were being assessed or considered for placement on parole. In all cases rehabilitation and risk factors were considered.

No comments were made by the Committee on the suggested amendments.

Clause 9
The clause replaced Chapter V of the Act in order to provide for the more comprehensive management, safe custody and well-being of remand detainees.

Ms Louw then set out the amended sections:

New Section 46
Section 46 spelled out that the principles of the regime were applicable to remand detainees. Only the new subsection (3) differed from the existing wording of section 46.

The Chairperson asked what had then changed in Section 46.

Ms Louw responded that the terminology in the section had changed.

Mr Abram asked what was meant by the phrase: “may be subjected only to those restrictions necessary for the maintenance of security and good order in the remand detention facility…” and whether “good order” had been quantified.

Ms Louw responded that “good order” had been spelt out in detail in Section 23 of the principal Act, which dealt with disciplinary infringement.

New Section 47
Mr Selfe noted that there was a slight ambiguity in that remand detainees could only get food and drink from their relatives in the remand detention facility. The wording differed in Sections 47 and 48. He asked if inmates were only allowed to receive food if they could prove kinship, saying that this discriminated against those without relatives.

Mr Max noted that there was confusion between Section 47, which related to food, and Section 48, which related to clothing.

Mr Abram suggested that the section should be reworded, so that it referred not to “visitors at the remand detention facility” but to “visitors to the remand detention facility”.

Ms Louw pointed out that the wording referred to “visitor”, not “relative”.

The Chairperson thought that this would not change anything.

Mr Selfe asked why this differed from the original wording of the principal Act.

Ms Louw suggested that the two could be combined.

Mr Jafta pointed out that it helped to know who was sending the food.

New Section 48
Ms Louw stated that the section made it compulsory for detainees to wear a prescribed uniform, which differed from the uniform worn by sentenced offenders. The proposal was intended to bolster security, and provide decent and humane clothing for destitute remand detainees.

The Chairperson stressed that the clause should not be restrictive. He asked what would happen to people who had worn-out clothing.

Ms Louw responded that if an inmate did not appear in uniform, then he/she  would appear in what the DCS provided to the inmate, at the State’s expense. A reference to this could be added.

New Section 49
Ms Louw stressed that this section provided for access to information, and it was intended to ensure proper record keeping. She stressed that the DCS intended to omit subsection (1).

The Chairperson asked whether a person who phoned the DCS asking whether a relative was being held in a certain detention facility would be given the information.

Ms Louw responded that Section 13 of the principal Act ensured that there was contact with the community.

New Section 49A
Ms Louw noted that the section dealt with pregnant women. She added that sub-clause (2) would be amended so that it referred to “the National Commissioner may…” rather than “must”.

Mr Selfe asked why the qualifier “as may be required by the context” appeared in sub-clause (3). He believed that the word “must” made more sense.

Mr Abram noted that there were some Constitutional prescripts. He added that the State could not negatively affect implementation of socio-economic rights.  He supported what Mr Selfe had said.

Mr Makabeni stated that the word “must” would guide the Department.

Ms Louw stated that the Department was prepared to retain sub sections (3) and (5), and keep the word “must” if the Committee wished.

New Section 49B
Mr Selfe asked whether sub-section (3) used the word “must” or “may”.

Ms Louw responded that it was “must”.

The Chairperson asked what was meant by the term “additional health care services” under sub section (2).

Ms Louw responded that she was not sure what it meant.

The Chairperson asked that the DCS come back with an answer to the question.

Mr Abram noted that disabilities took many forms. He stressed that if an inmate went insane then he would need additional services of a psychologist.

Ms Louw stated that the DCS would look into what additional services meant.

Mr Jafta responded to the question raised by the Chairperson by giving an example that remand detainees who had disabilities would need some additional health care services.

New Section 49C
Mr Abram suggested the use of the word “must” in sub-section (1).

The Chairperson stressed that the Committee would accept the word “must”, but was not happy with “may”.

Mr Selfe suggested that the word “may” be used in sub section (2), because it would otherwise place an obligation on the medical practitioner.

The Chairperson agreed with Mr Selfe.

Mr Max stressed that the onus rested on the DCS to ensure that it did everything in its ability to comply with the Act.

New Section 49D
The section dealt with mentally ill remand detainees. Ms Louw stressed that sub section (1) would be reworded.

Mr Selfe asked what section 77(1) of the Criminal Procedure Act (CPA) provided. He added that this was an area of huge potential abuse, so some expert evidence would be needed.

The Chairperson asked what Section 77(1) of the CPA stipulated, in relation to sub-section (1).

Ms Louw responded that the section covered with the capacity of an accused to deal with the proceedings. She stressed that the Mental Health Act was not working in practice. DCS had numerous inmates who “fell between the cracks” of the Mental Health Care Act.

Mr Jafta stated that the solution to the problem rested with the Department of Health and not the DCS.

The Chairperson agreed with Mr Jafta. He added that the Committee would apply its mind to the issue.

New Section 49E
This section provided a procedure that was modelled on the CPA, for the referral of terminally ill or severely incapacitated remand detainees to court. DCS wished firstly to correct a spelling mistake, and secondly had made a proposal to amend sub-section 2(a)(ii).

New Section 49F
Ms Louw stated that the DCS intended to delete the phrase “into charges other than for which he or she is detained” under sub section (1).

Mr Selfe questioned the extent to which the power or authorisation was delegated.

Ms Louw responded that the level of delegation rested at the level of Area Commissioner or Regional Commissioner, and in practice the level could be much higher.

Ms Ngwenya asked how often remand detainees were removed from the DCS’s facilities. She noted that there were no time frames in sub-section (3), and asked why.

Ms Louw said that remand detainees were removed on a daily basis. The issue of seven days was a request from SAPS.

Mr Max stressed that adding the word “working” would leave room for abuse of the provision.

Mr Abram stated that norms and standards were needed. He stressed that the Committee needed monitoring standards, especially in light of the ICD’s history. He noted that the amendment was silent on what would happen when a detainee was returned, and asked whether there was a checklist. He added that the report by the Judicial Inspectorate on the number of people who died in police custody was very worrying.

The Chairperson was not averse to deleting sub section (3). He stressed that if an inmate was to be returned within seven days, or a limited time period, it would limit the number of inmates who were tortured. He stressed that sub section (3) was not necessary.

Ms Louw responded that the readmission process was the same as the admission process. She added that if a detainee wanted to lay a complaint, he or she could do so.

Mr Abram stated that despite the readmission procedures, deaths still occurred. There was therefore a need to make the provision watertight.

The Chairperson noted that the interaction with the Department would continue in the next meeting.

The meeting was adjourned.