Judicial Inspectorate for Correctional Services 3rd quarter 2012 report, in presence of Minister; Correctional Matters Amendment Act implementation: Cluster report

Meeting report

Judicial Inspectorate for Correctional Services (JICS) 3^rd Quarter Report 1 April to 30 June 2012
The Portfolio Committee (PC) was not taken through the report by way of a formal presentation, but it had been tabled, and a few brief comments were made.

Mr Adam Carelse, Chief Executive Officer, Judicial Inspectorate for Correctional Services, said, by way of introduction, that the Department of Correctional Services (DCS) and the Inspectorate (JICS) were building a more effective relationship. The DCS had assigned a Chief Operations Officer to deal with the JICS. There was more appreciation for the JICS at grassroots level, and more prompt responses were forthcoming.

Mr Carelse noted the Committee’s previous concerns with the JICS complaints system, and said that there had recently been a decrease in the number of outside complaints from such agencies as the Public Protector or the media. More cases were being resolved. Trust was being built in the system among inmates. There was an increase in the number of mandatory matters reported by the JICS.

Discussion
Mr V Cele (ANC) asked for how long the DCS had had no personnel or training for firefighting at the Barberton Juvenile Centre.

Mr Carelse responded that fires had been set twice since December 2011. JICS investigations had revealed that there was not enough firefighting equipment, nor training. Those facts had been included in general routine reports. There had not been an overall survey.

Ms W Ngwenya (ANC) referred to the shortage of professional staff, as mentioned on page 9. She asked if the JICS report had gone to the National Commissioner, and if so, what the response had been. She pointed out that previous reports had not reached the National Commissioner.

Mr Carelse replied that the report had been submitted to the Committee on 14 August, and also to DCS Regional and Area Commissioners, the National Commissioner and the Minister. The Inspecting Judge had met with the Deputy Minister, and handed the report to him. He himself had sent an email to the Chief Operational Officer (COO) in the DCS, and had called a meeting with Regional Commissioners. The JICS had discovered that when a report was handed to the DCS at the end of a quarter, the Department had some difficulty in going back to events that had occurred three months previously. To try to counter that, the JICS was now making a report available on the fifteenth of each month, to the COO. The next quarterly report would reflect that there had been monthly reports. It would grant more time to the COO and Regional Commissioners to respond.

Mr Carelse noted, with regard to staff shortages, that the JICS had reviewed the placing of advertisements to fill posts, in the electronic media. The DCS was trying hard to fill its vacancies, and posts were being advertised, and headhunting done. Advertisements were placed in rural places for nurses and psychologists.

The Chairperson suggested that in the next quarterly report, a distinction be made between matters that had appeared in previous reports, and those that were new. It would then be possible to know how long certain matters had been outstanding. Henceforth there would be DCS comments on the quarterly reports.

Mr L Max (DA) referred to page 11, which stated that a gang management strategy was in place. He asked what that entailed, and whether there had been follow up to see if that was indeed the case.

Mr Carelse replied that routine inspections picked up facts about the gang situation. Trends were being plotted, and research was being done. He could not answer whether gang management strategies were effective.

Mr V Ndlovu (IFP) referred to the fact that electronic systems were not working at Barberton Maximum, as mentioned on page 10, and asked for more specifics as to what that meant. He asked why the response from the DCS had taken so long.

Mr Carelse responded that in that specific centre, the electric fence and scanners for members and visitors were not working.

Ms M Phaliso (ANC) asked for clarity about the food situation at the Nigel Correctional Centre. She asked how it reflected on the relationship between the DCS and the JICS, and what had actually been resolved. She also asked about capacity at Mount Ayliff Correctional Centre.

The Chairperson asked if there was an update on inmate Isak Coetzee, as the matter had been diarised for 6 August for further reports. He reminded Members that inmate Coetzee was mentally ill and therefore vulnerable. He had been awaiting trial since May 2008.

Mr Carelse replied that he had personally attended to the matter. When the facts came to light, he reported the matter to the office on the very same day. The inmate had been transferred to the psychiatric ward at Kimberley. There was a major challenge, in that there was no psychiatric hospital in the whole Northern Cape. There were only one or two state doctors. It was inexcusable that this inmate had waited four years. He was currently receiving psychiatric treatment, and would be assessed, so that a court ruling could be made.

The Chairperson asked if medical parole was defined broadly enough for inmate Coetzee to be released on medical parole. He thought that the Department of Justice should be forced to reconsider his case, as at the moment the DCS was sitting with the problem. He suggested that the Justice Portfolio Committee be approached on the matter, saying that there was not much that the DCS itself could do. This was something that needed discussion by the political leaders.

Mr Ndlovu advised that the South African Police Service (SAPS) also should be involved in those discussions, as it was this entity that got inmate Coetzee to the correctional centre.

Ms Phaliso noted that there had been a psychiatric facility at West End in Kimberley. She was concerned about Independent Correctional Centre Visitor (ICCV) vacancies. People like Katrina Boyes had done a good job at Kimberley. Progress had been made with awaiting trial detainees. She said that no true reflection of conditions at Springbok had been given.

Mr Sibusiso Ndebele, Minister of Correctional Services, said that the time had come to make government aware of the plight of awaiting trial detainees, who were in the centres only for custodial reasons. The problem was that the police tended to make arrests of people in order to investigate, rather than the other way round. The position of inmates like Isak Coetzee had to be made known to the whole of Parliament.

The Chairperson agreed that there had to be a political discussion of policies that applied to the DCS. An appropriate platform had to be found.

Mr Umesh Raga, National Director: Legal Services, JICS, noted that a magistrate had previously declared Isak Coetzee as unfit to stand trial. The Mental Health Act prescribed that such a person should be declared a patient of the State President, but Mr Carelse had found that inmate Coetzee had been “lost” in the system. The DCS had not known what to do. It had wanted the case to be transferred to the High Court.

The Chairperson told Mr Raga that he was complicating matters, and asked how it happened that a person could be found unfit to stand trial, only to be sent back to the DCS later.

Judge Vuka Tshabalala, Inspecting Judge, JICS, responded that if an inmate who was being detained was suspected to be insane, the magistrate should have sent him, for observation, to an area where there was a mental institution. The JICS had gone to Kimberley and discussed with the officials the plans for building a mental institution. He confirmed that if an offender was found guilty but was insane, he became a State President’s patient. The magistrate had to refer him to an institution.

Ms Ngwenya asked when the plumbing at Ekoseni Youth Development Centre would be fixed, and whether the Department of Public Works assisted with that.

The Chairperson noted that the bottom column on page 15 did mention that the plumbing had been repaired, but it had to be verified and monitored.

Mr Max agreed that there had to be a distinction made in the report between actions taken and those still outstanding. There were shortcomings and managerial defects in the DCS. The JICS had to pick up on what Heads of Centres were doing.

Ms Phaliso pointed out that the JICS did not have an independent budget, and that begged the question of how effective its services could therefore be. She referred to vacancies for ICCVs, and asked about funding for them. She referred to the shortage of doctors at Klerksdorp Correctional Centre. With regard to Voorberg, she asked if the complaints had really been resolved. The inmates had lost confidence in the JICS because of unresolved complaints.

Mr Carelse responded that there had been a discussion on the previous day with the Department of Public Service and Administration, about pay for ICCVs. ICCVs worked for a three-year contract. At the end of that period, they could avail themselves for re-appointment. If a person then wanted to leave, someone else had to be found. The filling of posts could take a long time, and it had been suggested that former ICCVs could be offered a 6-month contract, to fill in during that time. The JICS could plan ahead, because they knew when the contract of an ICCV was going to expire. If an ICCV died or resigned, or the contract was terminated, this posed a risk. In urban areas there was a large pool of former ICCVs, but this was not the same in the rural areas.

Mr Carelse said, in regard to the questions about unresolved complaints, that he could take random complaints from the register and check up on them during visits. It was necessary to sit with the Head of Correctional Centre and ask whether matters had been resolved. Complaints were, in the main, adequately addressed.

Judge Tshabalala added, with regard to ICCV vacancies, that the JICS was still a young unit, as it had started in the late 1990s. Penetration into the rural areas had never been deep, but it was currently happening. There were currently offices in Durban, Bloemfontein and Pretoria. There were applications from KwaZulu Natal for ICCVs. The JICS could not function without filling vacancies, but they were being filled. All centres in KwaZulu Natal would have ICCVs by the end of September.

Judge Tshabalala agreed with Ms Phaliso about the need for independent funding. He pointed out that the JICS was very similar in its scope to a Chapter 9 institution, which was supposed to be independent, but the lack of a separate budget meant that it was not independent. The JICS did oversight, and required its own funding. The JICS tried to comply with the Act, but had to be independent.

The Chairperson agreed that the Committee should argue for independence for the JICS. He assured the Judge that it would be taken to the right forum.

Mr Abram referred to the fact that children were not being housed separately from juveniles at Emthonjeni Centre. Oversight had revealed that there were only 240 juveniles, and yet there was space for 600, so that there was plenty of space to separate them. They could be together for activities, and be separated in the evening.

Mr Cele referred to a comment on page 24 of the Report, and asked who had asked R300 for protection from an inmate.

Ms Nontsikelelo Jolingana, Chief Operations Officer, DCS, replied that it was unacceptable that inmates should be asked to pay for protection or food. The matter was being investigated, and the results of the preliminary investigation would be made known in the following week.

Mr Ndlovu referred to bullet points 3, 4, 5 and 6 on page 19. It appeared that there was an impasse between the DCS and the Department of Public Works (DPW) and there were management problems. He asked what actions had been taken.

Mr Carelse replied that the DCS did respond to those items, but the feedback could not yet be included in the report. Heads of Centre received JICS findings immediately.

The Chairperson referred to unnatural deaths, as mentioned on pages 46 and 47.There had been no post mortems for inmates Aldo Scheffers and Sanele Mbambo. In the case of Andrews Owen, the post mortem results had been outstanding for months. Suicides were occurring in public spaces, according to reports, and inmates were dying after lockdown at night because nurses could not get to them. There was no access or management after lockdown, because of the master key system. He reminded those present that for some time, the Portfolio Committee had been urging the need for Closed Circuit Television. It was unacceptable to have suicides in communal cells. There had been eight unnatural deaths that quarter, and, if spread over a year, that amounted to the same number of deaths that had occurred at the Lonmin Mine. It must never be forgotten that inmates were humans, and the large number of deaths had to be taken seriously. It was perfectly possible to use technology, and the DCS must explain why it was not proceeding with the CCTVs.

Mr Max remarked that in the past the JICS had raised matters that infuriated the DCS, like the internal audit committee. The DCS had to reply in the presence of the JICS, otherwise it would proffer a host of other reasons, and he urged that both parties participate in the explanations and debates.

Mr Tom Moyane, National Commissioner, DCS, said that he accepted the issues raised. The relationship between the DCS and the JICS had improved. He also accepted Mr Max’s suggestion that both parties should be present at discussions, but wanted to point out that there was no suggestion of any aspersion. The DCS had dedicated a Chief Operations Officer to dealing with the JICS. The Minister would pronounce on the issue of CCTV.

Judge Tshabalala said that he too was concerned about unnatural deaths. The rule was that there had to be a post mortem, and that must be applied strictly in the DCS. The cause of death had to be noted. If there was a query, there had to be an inquest. He said, with regard to CCTV, that it was necessary to identify who was to do what, and cautioned that there was some concern that having CCTV was contrary to the Constitutional right to privacy. However, he agreed that it needed to be considered.

The Minister remarked that he shared the concerns about unnatural deaths. The courts could no longer sentence people to death, so whoever was sentenced eventually had to return to the community. People wanted closure, and there were many wounded people in the communities. There had to be victim-offender dialogue, to normalise emotional and psychological impacts of crime. Society had to move away from the approach of simply taking the offender out of the community. There had to be communication between victims, offenders and the community, with person to person reconciliation. He agreed with the Chairperson that suicide was a private matter that should not occur in public spaces. There had to be post mortems and inquests. CCTVs could increase capacity to monitor, but one argument against CCTV was that it intruded upon privacy. However, the counter-argument was that human life was more important.

Correctional Matters Amendment Act, 2011 (Act 5 of 2011): Implementation Status Report by Justice, Crime Prevention and Security (JCPS) Cluster
The Chairperson remarked, by way of introduction, that the purpose of the next briefing was to examine the extent to which the DCS, as well as the SAPS, were implementing the Correctional Matters Amendment Act (the Act). He noted that Legal Aid South Africa (LASA) would also be asked to comment.

Mr Pieter Du Randt, Chief Director: Court Services, Department of Justice and Constitutional Development, said that reducing overcrowding in correctional centres had been a priority for the Justice Cluster even before the Act was passed. The challenge was how to deal with case flow management. Interaction with the SAPS and National Prosecuting Authority (NPA) had improved, and strong partnerships had produced results. The number of remand detainees (RDs) had decreased on a year to year basis because of JCPS Cluster interventions. There were speedier trials, increased use of Alternative Dispute Resolution Mechanisms (ADRM), and additional courts to clear the backlogs.

Ms Britta Rothman, Deputy Commissioner: Remand Detention, DCS, outlined the areas in the presentation that detailed the progress with the establishment of Remand Detention Facilities (RDFs), detention in a police cell for a period no longer than 7days, the situation with mentally-ill remand detainees, the release of RDs under SAPS supervision for investigation, the referral of severely incapacitated or terminally ill RDs to court, and referral to court based on the length of detention (see attached presentation for figures and statistics).
 
Discussion
Mr Ndlovu asked if the Justice Cluster was satisfied with the decrease in the numbers of remand detainees. He pointed out that detention in police cells for longer than seven days was unlawful, and asked who was responsible for the fact that people were kept in remand for longer than two years.

Ms Phaliso remarked that in some Centres, more than 50 people had said that they had been detained for three or four years. The absence of Legal Aid in Correctional Centres caused concern. Offenders complained that there were no legal services for them. Cases were delayed without explanation. She felt that more detail was needed, centre by centre, on remand detainees.

Mr Abram asked if the DCS had done an audit of the mentally ill and incapacitated. He said that the Cluster had to determine a crime prevention strategy. The major contributing factors to the high incarceration rate had to be identified.

Mr Abram asked if Mr Du Randt could give a figure for the number of prosecutors without email. It seemed that there was a lack of commitment in the public service. Only a minority was motivated.
 
Mr Cele said that there had been allegations that Legal Aid South Africa lawyers had advised remand detainees to plead guilty. They were not brought before court for consultation.

The Chairperson asked Legal Aid South Africa (LASA) to comment.

Ms Cordelia Robertson, Executive, Legal Aid South Africa, said that children under 18 received specific protection under the Child Justice Act. Each child had to be legally represented, and LASA would take on their defence if they were not independently represented. There was contact with the Department of Social Development to find places of safety, but even children would be kept in a correctional centre if they  misbehaved or escaped from a place of safety. LASA appointed paralegals for remand detainees, and LASA did visit the correctional centres on a daily basis. There were not many remand detainees who pleaded guilty. Every Legal Aid practitioner had a consultation day, when they had to go to court.

Mr Max stated that he had no trust in Legal Aid. The capacity of its lawyers was lacking. He had attended a court case, in which one of a group of people, all of whom were drunk, had died, and the husband of the deceased, who was being charged, obviously had not been told what was going on. The witnesses had not been briefed. Mr Max had cautioned the Legal Aid representative that serious charges were at stake, in answer to which he had said merely that he was aware of that, and carried on fiddling with his cellphone, not showing much concern. This was particularly worrying since many of the illiterate youngsters whom LASA was representing simply believed what they were told.

The Chairperson remarked that there were probably 40 000 remand detainees who did not have lawyers. He asked about the case load, pointing out that in the previous year it had been stated at a figure of 500. The Committee could take LASA to virtually any court to prove that the inmates only saw a legal practitioner at court, and he too commented that the quality of the LASA services was very poor. The case load was too heavy. He asked where LASA representatives would hold their consulting, given the overcrowded centres, and said that there were no specific facilities for that. He urged LASA to be frank and open, and asked how many practitioners there were to deal with cases.

Ms Robertson replied that there was one practitioner for every court in the Western Cape and Northern Cape.

The Chairperson asked what happened if there were 10 000 detainees in an area. He asked, for instance, how many people were serviced at Bloemfontein.

Ms Robertson said that as soon as remand detainees applied for legal aid, they could have their day in court. There were paralegals at the prisons to assist with the applications.

The Chairperson pointed out that the concern was not limited to having one person serving 10 people, but stressed that it was unacceptable that inmates would see their legal representatives for the first time at the court. If there were problems around the budget, then that was something that would have to be taken to the relevant department, as it was vital that the law be properly implemented.

Mr Du Randt suggested that LASA be asked to make a presentation. There were budgetary constraints. LASA had had to deal with 382 000 criminals in the previous year.

Ms Phaliso remarked that there had been a call,  for a long time,  for representatives of LASA to engage with the other players. The Heads of Correctional Centres had commented that they would issue invitations to LASA, but nobody would show up at the meeting.

Ms Robertson said that LASA would welcome the opportunity to address the Committee. LASA had not previously been invited to any of this Committee’s meetings. She reiterated that LASA had dealt with nearly 400 000 criminal cases in the previous year. The accused were seen at court, when the charges were laid, and were also consulted with later. She asked that Mr Max give her the name of the man involved in the case he related.

The Chairperson asked the National Prosecuting Authority (NPA) to speak.

Ms Patricia Makroti, Senior State Advocate, National Prosecuting Authority, noted that the Department of Justice and Constitutional Development had informed all Registrars, Regional Heads, Judicial Heads of Courts and Court Managers about the establishment of remand detention facilities, by way of an internal circular on 26 April 2012. The protocols had been distributed. The Director of Public Prosecutions would provide a hard copy of the protocols.

The Chairperson remarked that a colleague of Ms Makroti had said that, in Johannesburg, people could be heard in their language of choice, but in actual fact, the translation services were few and far between. The Gauteng Head of the NPA had said that there were delays in finding translators. He asked about the availability and cost of court translators.

Ms Makroti replied that the Case Flow Management system would deal with that.

Mr Du Randt said that establishing pools of interpreters was a major challenge in Gauteng.

Major General Johnson, SAPS representative, said that translators had to be found for accused people from Asia, Nigeria and Pakistan. The inevitable delays in doing so led to postponements, and made the remand period longer. There were also challenges in getting blood analysis, DNA and histology results. Some cases had to be placed on High Court rolls. The situation of those held in custody without bail was serious. He also commented that many remand detainees were not coming to court.

Mr Abram said that it was not only a problem of finding prosecutors and investigators. He did not believe that it was correct that foreigners were being jailed for crimes committed in South Africa, such as rhino poaching. In his view, the whole legal framework was not strong enough, and another problem was the need to tighten influx control.

Major General Johnson replied that police were bureaucrats, and had to apply the law. He did not think it was entirely correct to claim that the law was not effective. There were certainly challenges around foreign nationals, but it could not be stated with certainty that everyone who was detained had in fact committed crimes. There was a minority of foreigners involved in crime, and it must be borne in mind that many foreigners were also victims.

The Chairperson told Major General Johnson that if he visited Florida police station on a Friday night, he would see that SAPS officials simply picked up everybody. Some officials were making arrests, in order to boost their chances of promotion, or they would arrest in order to try to adduce evidence, and many of the cases were eventually thrown out. He commented that there was a perception that SAPS and the NPA colluded for bail after hours.

Mr Max noted that the police had targets that a certain amount of arrests had to be made in a given period.

Mr Abram remarked that the Committee had also heard that rape and drug peddling occurred in police vans on their way to court. He asked what SAPS was doing about this situation.

The Chairperson said that the Committee had long argued for separation of adults and juveniles, but another worry was that male and female detainees were also transported together, and rapes had occurred in this way.

Mr Du Randt responded that the Cluster was looking at having postponements done by Audio Visual means, to try to address some of the problems.

Mr Du Randt noted that the figure of 9.8% on page 4 referred to the increase in cases that had been finalised in the first quarter. In the previous year, the relative figure had sat at minus 16%, so there was a positive improvement.

Mr Du Randt commented that everyone had to share responsibility for remand detainees who were held longer than two years. There were 2 600 RDs held for longer than two years, and of these, 200 were held for longer than five years. There had been total system failure in these cases.

Mr Du Randt also noted that crime prevention strategies had to take account of legacies of poverty. The Department of Social Development would assist. At the court level, the capacity constraints of old court buildings also had to be considered and improved.

The Chairperson requested a breakdown, showing both the gender and charges against the detainees, of the 2 616 people who were held for longer than two years.

Ms Rothman replied that nearly 2 000 of those people were in remand detention facilities. The challenge of mentally ill or incapacitated detainees, who were not the State President’s patients, would be dealt with through the Department of Health. There were 170 observation beds. There were challenges with section 5 of the Act. In the past, agreements could be reached between the SAPS and DCS. People had to be moved further away from police cells.

The Chairperson stated that specialised remand detention facilities had to be considered. He asked if the comment about the Diepkloof Remand Section referred only to a separate wing. He noted that HR, infrastructure and location all had to be discussed. There had to be an indaba with the general public at Illovo.

The meeting was adjourned.