Correctional Services Amendment Bill [B32-2007]: deliberations

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
31 August 2007
CORRECTIONAL SERVICES AMENDMENT BILL: DELIBERATIONS

Chairperson: Mr D Bloem (ANC)

Documents handed out:
Changes made on clauses presented by Ms M Malebye

Audio recording of meeting

SUMMARY
The Committee continued to discuss the clauses of the Correctional Services Amendment Bill, focusing on those clauses that contained some amendments. The Committee discussed clauses 47 and 52, where the focus of discussions was on the words "use" or "abuse" of alcohol. The majority of Members suggested that parolees should be treated no differently from those on parole and questioned the testing procedures. Under Clause 56, Members asked why it was necessary to change the current provisions. They expressed concern that the Minister was being mentioned. The Department clarified that there was an entire consultative process. The framework would try to avoid clashes with any other law, and would address the currently incorrect expectations that parole was automatic. The Department assured the Committee that this would not be used to lessen time served in correctional centres. An unreported case of Botha v State was discussed. Discussion was held on where the provisions would be contained in the Bill or regulations, and the Chairperson indicated that the Committee disagreed with the amendment proposed, and suggested a change to it. IT was noted that the Minister was again cited under Clause 59. The Committee believed he should be the last point of appeal. Clauses 68 to 76 were briefly outlined. There were queries raised about the office of judicial inspector under clause 70 and 69. Further queries were raised on the issue of this office under Clause 74. The Committee did not support the removal of the function of investigating fraud and corruption from the judge. The Committee believed that the powers should still vest in a judge. The power of appointment of the CEO should likewise vest in the judge, and the importance of independence was stressed.

MINUTES
Correctional Services Amendment Bill: Deliberations
Adv Millicent Malebye (Deputy Commissioner, Legal Affairs, Department of Correctional Services highlighted the changes that had been made to the Correctional Services Amendment Bill (the Bill), and Members proceeded to discuss these changes.

Clause 47: Amendment of section 52 of Correctional Services Act 111 of 1998 (the principal Act)

The Chairperson asked for the reason why the Department of Correctional Services (DCS) wanted to remove the phrase ‘a court’.

Ms M Malebye replied that she could deal with that issue in discussions under Section 73.

Clause 52: Substitution of section 67 of Act 111 of 1998

Mr J Selfe (DA) wanted to briefly raise the point why the words "Use of abuse" had been substituted with "Abuse" and later in the clause shy "used or" had been changed.

The Chairperson wanted clarification for use of the phrase ‘reasonable suspicion’.

Ms Malebye remarked that Section 57(5) of the principal Act had been deleted because there was a contradiction. This section had stated that "a person subject to Corrections may not be under the influence of alcohol or any other drug to an extent that it impairs the process of supervision’. In other words it had suggested that alcohol could be used. Subsection (k) however spoke of refraining from using alcohol. The reason for the term "abusing alcohol" was that a person placed on parole would be subject to conditions that the board could impose. The addition of the words "or used illegal" were added because if the person was tested for alcohol there may be other medicinal drugs in their system.

The Chairperson commented that he did not understand. He felt that the principal Act captured it very well. The Committee had argued that this person was still an inmate.

Mr Carel Paxton, Director: Code Enforcement: Department of Correctional Services, added that paragraph (k) set out one of the conditions, which included reference to using or abusing alcohol. Then in another section in the Act there was the suggestion that alcohol could be used, as long as it did not impair the supervision process. The DCS thought that this contradiction should be corrected, by deleting that subsection, and aligning the rest of the wording

Mr Selfe was not in favour of the deletion. He thought that perhaps should be amended. He also added that he had not heard of a condition of parole that did not include a prohibition on alcohol. He asked the rhetorical question of how could one determine when use became abuse.

Mr Erns Kriek, Director: Pre- Release: DCS, agreed with Mr Selfe and added that that was the formulaic conditions set previously. With the new dispensation it was clearly stated that the offender should accept those conditions. The DCS was currently going through the process of getting the parole boards to set conditions that fitted the offender.

Bishop L Tolo (ANC) commented that once a person started to drink, even if it was just a little, he or she could continue until drunk. He asked how there could be monitoring of how much had been drunk.

The Chairperson clarified Bishop Tolo’s question by saying that there could be a temptation if the person was allowed to drink, and reiterated that the problem was how to gauge whether the person was drunk or not drunk.

Ms Malebye replied that answer was in Section 67, that referred to testing. She added that drinking alcohol was not a crime and whether it was allowed would depend on the circumstances.

Mr E Xolo (ANC) asked what would happen if the person was taken for testing on suspicion that the person was drunk, and he/she was not.

Mr Kriek replied that the Act made provision for "suspicion". There were visual indicators and doubted that a mistake would be made.

Ms Malebye added that this test was used by the Department of Transport and that DCS was not going outside the boundaries of the law.

The Chairperson followed up on the fact that conditions set for parole should be unique to the parole, and said that they were not consistent in applying law.

Mr Kriek replied that what should be taken into consideration was the nature of the crime. He added that each set of facts would fit the person.

Mr Selfe responded that in the real world it was well known that there was a significant correlation between alcohol abuse and crime. In principle, anyone who was on parole should not be allowed to drink at all.  The difficulty was that there was a regulation regarding an established drinking limit. However the Bill merely referred to the "abuse" of alcohol, and there was no standard procedure. A very simple principle should be established regarding alcohol and its use.

Mr S Mahote (ANC) gave an example of a young man arrested for theft and imprisoned. He was granted parole, went drinking, and, under the influence of alcohol, stabbed and killed another person. He was trying to determine whether there was really a distinction between an inmate and a parolee. He thought that until a person had fully completed the sentence, he must not be allowed to drink.

Mr N Fihla (ANC) commented that Members would have to understand the different cultures. Generally, drinking in the white communities would not cause so many problems. In the townships, communities had gone so far as to say that taverns should be closed, because they were linked with the crime committed in those areas. It was very difficult for a person to go to a tavern and leave sober, and generally those who went to taverns abused alcohol. It was a question of culture.

Ms Malebye noted the concerns of the Committee.

Clause 56: Amendment of section 73 of Act 111 of 1998

Mr Selfe required a full explanation of why the amendments was considered necessary.

Ms Malebye replied that the effect of the amendments in Section 73 (a) related to the Minister having to determine minimum periods in terms of parole, which was initially the prerogative of the judiciary in respect of life sentences. It might appear that the Department was trying to take away the powers of the judiciary. This was not so - what the incarceration framework was trying to properly address was management and administration of parole. Bound by rigid provisions, such as these, offenders serving a determinate sentence had to serve half of the sentence. This created difficulties for the Department because it created unfounded expectations by offenders who expected to be released on parole after serving a specific amount of time.  The Department was also looking at the rehabilitation of offenders, and sometimes there would be occasions where, even though the offender had served half his sentence, he still was not rehabilitated. The Department was saying that the Minister, who was part of the Executive and Parliament, should be given the opportunity, in consultation with the National Council for Correctional Supervision (NCCS), to determine a minimum period of sentences.  When the courts were considering parole, they would have had a report from the Board who would have had inputs from the social worker, social development and other inputs from the Department. If the Minister, in collaboration with the NCCS, were to have this function, it was the view of the Department that this would enhance the powers of the legislature to monitor or administer parole.  The incarceration framework was brought before the legislature.  The Board included judges, and magistrates, and so the judiciary was still playing an important role. The NCCS also included members of parliament. Social workers and the Deputy Director of Public Prosecutions were represented on the parole board.  Therefore, across these institutions, the necessary expertise was covered. 

This proposal would further enable the Department to come up with a final classification of offences, instead of the current broader classification with no details. Currently, there was no consistency in the application of parole. This framework would assist the legislature.

The Bill did not in fact seek to address some offenders in a more favourable way than others. The intention was to ensure that the Board was looking at the number of years served, and also at programmes to try to assess whether the offender was rehabilitated. The framework was such that it did not clash with any other law. If such elements were not considered, the DCS may end up with unnecessary litigation and expectations.

Mr Paxton added that at the moment, irrespective of the crime, consideration for parole could be given after half the sentence had been serviced. Determinate-sentenced offenders were currently 90% of the prison population. The category of offences would also be fine tuned through the incarceration framework, which would assist in looking at the prevalence of specific crimes. The secondary factor, proper parole management, was tooled towards managing the offender population. If DCS were able to fine tune parole management it could also properly manage facilities, resources and finance. 

Mr Kriek added that it was a tool that could be used to manage the prison population. Parole was not intended however to alleviate overcrowding.

Mr Paxton emphasised that the Minister already had powers under Section 82 aimed at regulating the prison population. That would be the legal tool used if there were to be a crisis in terms of prison population.

Mr Mahote wanted clarification on the composition of the Council. He asked who the members of parliament would be.

Ms Malebye replied that the Act provided for that, but she was not quite certain about the current composition.

The Chairperson emphatically answered there was nobody that was in consultation with the Committee on this, and he was not consulted.

Mr Selfe looked at what should be the role of parole. He believed it was the management of the offender as part of a rehabilitation plan. In order to do that there was need of a framework, and he accepted that the current framework may be rigid and not adaptable to individual circumstances. However, the Minister and National Council could not intervene into all applications on parole. Because of that they would have to establish another framework and this would give rise to just as much uncertainty and litigation.

Mr Selfe was not sure that this function should be delegated to the Minister. He thought it was a legislative or judicial function, and not an executive function. He urged that much thought should be put into this, as it could create a number of troublesome issues.

Mr Fihla commented that if the twenty-five year conditions was scrapped, and a life-sentence offender was released perhaps after fifteen years, because he had gone through a rehabilitation programme, he was concerned about the communities. Community safety was part of the balance to be struck, and the communities should be at least assured of the fact that those offenders were going to remain in prison for twenty-five years.

Mr M Navara, Legal Services: Parliament, asked for the full citation of the two cases that were furnished in the motivation for the amendment, Botha v State and S v Nkosi. 

Mr Paxton replied that the Botha case was still unreported; but was a Supreme Court of Appeal matter, case number 318 of 1993. The trial judge had recommended that the offender serve at lease two-thirds of his sentence before being ready for parole. It was said that the function of the sentencing officer was merely to determine  the appropriate period of imprisonment for a person convicted of an offence. A court had no control over the minimum period of sentence that ought to be served by the offender. A recommendation of this kind was considered an undesirable incursion into another arm of the State, and was bound to cause tension between the judiciary and the executive.  Courts were not entitles to prescribe to the executive branch of government how long a convicted person should actually be detained, as this would usurp the function of the executive.

Mr Navara also raised the point that Section 84(2) of the principal Act said that the Minister must refer draft legislation and major proposed policy developments regarding the correctional system to the National Council for its comments and advice. He submitted to the Committee that these proposals made by the Department should have submitted to the National Council.  If that had been done, he asked that the advice from the National Council should be made available to the Committee.

Mr Paxton replied that the DCS had a meeting with the National Council on the Amendment Bill, and there were also deliberations thereafter. DCS was not sure about the advice given but would follow up with the minutes of the meeting. 

The Chairperson commented that the Minister was the Executive and the Committee was Parliament. If the Bill was now suggesting that the Minister should take the role of the courts, this would create a serious problem. Mr Fihla was raising the issue of the prevalence of crimes of a serious nature. The principal Act was suggested now to be changed, so that a person sentenced to a life sentence should not get parole until they had served twenty-five years or until they had reached the age of sixty-five. He wanted to know, if the Committee were to agree, what would the Minister’s plan entail, and would he keep them incarcerated for a longer or shorter period.

Mr Xolo agreed with Mr Selfe in that there was a need to have a thorough examination of all issues, and to have foresight. He would imagine the determination would be done by the National Commissioner, and the final say would be with the Minister. The Minister was the political head, therefore he would be the last resort.

The Chairperson agreed that the last appeal should be to the Minister but raised the query that if the Minister had already decided, where would this person then go.

Mr Paxton noted that in terms of the determination for consideration of parole, the Minister only featured in one aspect, currently for those serving life-sentences. These provisions had come into operation on 1 October 2004. Persons sentenced after 1 October 2004 would serve the full twenty-five years.  That meant that the first parole applications of this nature would be in 2029.

Mr Mahote was concerned about the composition of the Board. If the Bill kept making reference to "in consultation with the National Council" he asked who exactly would be consulted.

Mr Paxton replied that currently the general composition of the National Council was two judges of the high court, a magistrate of the regional division, Director or Deputy Director of public prosecutions, two members of the Department above the rank of director, a member of the South African Police Service above the rank of director, a member of the Department of Welfare above the rank of director, two persons who had special knowledge of correctional services but who were not in the service of the State, and then the provision that was previously discussed about the other members. Currently Judge Desai was the Chairperson of the National Council.

Bishop Tolo thought that there had been satisfaction with the condition of twenty five years. He asked what was wrong with that condition that the Department felt that it had to be amended.

Ms Malebye clarified that the Department was not scrapping the twenty-five years. Section 73(a)(1) stated that the Minister, in consultation with the National Council, by notice in the Government Gazette, would determine minimum periods.  In other words there would be periods determined and published in the Gazette. There was no intention to give the Minister the leeway to determine period case by case.  It would be refined in particular with reference to classification of offences

The Chairperson believed that the provision was worded in a vague way. He could not see any reference to the twenty-five years.

Ms Malebye replied that the incarceration framework would provide that period, and it would be gazetted.

Mr Navara simplified the question further by saying that the Committee wanted to know what was wrong with the condition set of twenty-five years in the principal Act. 

Mr Kriek did not think there was anything wrong nothing wrong with that reference to  twenty-five years. He thought that the Committee was afraid that the DCS would use this amendment to reduce time served. DCS believed it was too rigid. DCS merely wanted a better framework for parole placement.  There were inconsistencies, as with the present legislation it was problematic to remain consistent, with fifty-two parole boards. He said that the Committee should not fear that the DCS would use this to try to reduce the times being served. 

The Chairperson reiterated that if there was nothing wrong with the legislation why were DCS changing it.

Mr Kriek replied that it was not the only reference being changed and that DCS would be following the same principle.

Mr Selfe wanted to know if he was correct in thinking that there would still be a framework that would deal with certain crimes requiring a set amount of time in prison. He did not understand the argument of how the new framework would be less rigid and less flexible, he understood that it would be more sophisticated and that it would take into consideration categories of crime and so forth. There would still be fifty-two parole boards coming up with different decisions around the new framework. 

Mr Selfe further did not understand what role the Committee would play in the determination of this framework.

Mr Kriek agreed there would be a framework, but that it would be more sophisticated. It would have to be approved by the Committee as it would need to be published in the Gazette. 

The Chairperson stated that there had never been any regulation or approval of any framework.

The Chairperson wanted to be clear that the Committee disagreed with the Amendment.  He suggested a change to the effect that a person may not be placed on parole until he or she had served the period determined by the National Council and the National Commissioner. He stated that DCS should delete the reference to the Minister from the Clause.

Mr Selfe asked where in the Act was it set out that the minimum periods for parole would get published in the Gazette.

Mr Kriek replied that in was in Clause 57, section 73A.

Mr Selfe responded that it was simply a notice, which did not have to be referred to the Portfolio Committee, and because of that it would not be correct to say that the Committee would have a say in the dealing with minimum periods for parole.

Clause 59 (c): Amendment of section 74 of Act 111 of 1998, as amended by section 28 of Act 32 of 2001,

The Chairperson noted that the Minister was once again named in this Clause.

Mr Kriek replied that it was to remain consistent.  It was suggested that the Minister approve the release of those serving a life sentence. Presently the National Council advised the Minister and the Minister approved or not.

The Chairperson reiterated that the Minister had to be the last point of appeal and asked why were DCS were not using the National Commissioner.

Mr Kriek responded that the principle was that all life sentences should be considered by the Minister.  There were two systems that DCS was trying to align.

Clause 62: Substitution of section 78 of Act 111 of 1998, subparagraph (2)

The Chairperson noted to the Committee the fact that once again the Minister has been involved.

Clause 70: Substitution of section 86 of Act 111 of 1998,

Mr Selfe was uncertain about what other amendments were contemplated in this clause.

Ms Malebye Adv Millicent Malebye (Deputy Commissioner, Legal Affairs, Department of Correctional Services highlighted the changes that had been made to the Correctional Services Amendment Bill (the Bill), and Members proceeded to discuss these changes.

Clause 47: Amendment of section 52 of Correctional Services Act 111 of 1998 (the principal Act)

The Chairperson asked for the reason why the Department of Correctional Services (DCS) wanted to remove the phrase ‘a court’.

Ms M Malebye replied that she could deal with that issue in discussions under Section 73.

Clause 52: Substitution of section 67 of Act 111 of 1998

Mr J Selfe (DA) wanted to briefly raise the point why the words "Use of abuse" had been substituted with "Abuse" and later in the clause shy "used or" had been changed.

The Chairperson wanted clarification for use of the phrase ‘reasonable suspicion’.

Ms Malebye remarked that Section 57(5) of the principal Act had been deleted because there was a contradiction. This section had stated that "a person subject to Corrections may not be under the influence of alcohol or any other drug to an extent that it impairs the process of supervision’. In other words it had suggested that alcohol could be used. Subsection (k) however spoke of refraining from using alcohol. The reason for the term "abusing alcohol" was that a person placed on parole would be subject to conditions that the board could impose. The addition of the words "or used illegal" were added because if the person was tested for alcohol there may be other medicinal drugs in their system.

The Chairperson commented that he did not understand. He felt that the principal Act captured it very well. The Committee had argued that this person was still an inmate.

Mr Carel Paxton, Director: Code Enforcement: Department of Correctional Services, added that paragraph (k) set out one of the conditions, which included reference to using or abusing alcohol. Then in another section in the Act there was the suggestion that alcohol could be used, as long as it did not impair the supervision process. The DCS thought that this contradiction should be corrected, by deleting that subsection, and aligning the rest of the wording

Mr Selfe was not in favour of the deletion. He thought that perhaps should be amended. He also added that he had not heard of a condition of parole that did not include a prohibition on alcohol. He asked the rhetorical question of how could one determine when use became abuse.

Mr Erns Kriek, Director: Pre- Release: DCS, agreed with Mr Selfe and added that that was the formulaic conditions set previously. With the new dispensation it was clearly stated that the offender should accept those conditions. The DCS was currently going through the process of getting the parole boards to set conditions that fitted the offender.

Bishop L Tolo (ANC) commented that once a person started to drink, even if it was just a little, he or she could continue until drunk. He asked how there could be monitoring of how much had been drunk.

The Chairperson clarified Bishop Tolo’s question by saying that there could be a temptation if the person was allowed to drink, and reiterated that the problem was how to gauge whether the person was drunk or not drunk.

Ms Malebye replied that answer was in Section 67, that referred to testing. She added that drinking alcohol was not a crime and whether it was allowed would depend on the circumstances.

Mr E Xolo (ANC) asked what would happen if the person was taken for testing on suspicion that the person was drunk, and he/she was not.

Mr Kriek replied that the Act made provision for "suspicion". There were visual indicators and doubted that a mistake would be made.

Ms Malebye added that this test was used by the Department of Transport and that DCS was not going outside the boundaries of the law.

The Chairperson followed up on the fact that conditions set for parole should be unique to the parole, and said that they were not consistent in applying law.

Mr Kriek replied that what should be taken into consideration was the nature of the crime. He added that each set of facts would fit the person.

Mr Selfe responded that in the real world it was well known that there was a significant correlation between alcohol abuse and crime. In principle, anyone who was on parole should not be allowed to drink at all.  The difficulty was that there was a regulation regarding an established drinking limit. However the Bill merely referred to the "abuse" of alcohol, and there was no standard procedure. A very simple principle should be established regarding alcohol and its use.

Mr S Mahote (ANC) gave an example of a young man arrested for theft and imprisoned. He was granted parole, went drinking, and, under the influence of alcohol, stabbed and killed another person. He was trying to determine whether there was really a distinction between an inmate and a parolee. He thought that until a person had fully completed the sentence, he must not be allowed to drink.

Mr N Fihla (ANC) commented that Members would have to understand the different cultures. Generally, drinking in the white communities would not cause so many problems. In the townships, communities had gone so far as to say that taverns should be closed, because they were linked with the crime committed in those areas. It was very difficult for a person to go to a tavern and leave sober, and generally those who went to taverns abused alcohol. It was a question of culture.

Ms Malebye noted the concerns of the Committee.

Clause 56: Amendment of section 73 of Act 111 of 1998

Mr Selfe required a full explanation of why the amendments was considered necessary.

Ms Malebye replied that the effect of the amendments in Section 73 (a) related to the Minister having to determine minimum periods in terms of parole, which was initially the prerogative of the judiciary in respect of life sentences. It might appear that the Department was trying to take away the powers of the judiciary. This was not so - what the incarceration framework was trying to properly address was management and administration of parole. Bound by rigid provisions, such as these, offenders serving a determinate sentence had to serve half of the sentence. This created difficulties for the Department because it created unfounded expectations by offenders who expected to be released on parole after serving a specific amount of time.  The Department was also looking at the rehabilitation of offenders, and sometimes there would be occasions where, even though the offender had served half his sentence, he still was not rehabilitated. The Department was saying that the Minister, who was part of the Executive and Parliament, should be given the opportunity, in consultation with the National Council for Correctional Supervision (NCCS), to determine a minimum period of sentences.  When the courts were considering parole, they would have had a report from the Board who would have had inputs from the social worker, social development and other inputs from the Department. If the Minister, in collaboration with the NCCS, were to have this function, it was the view of the Department that this would enhance the powers of the legislature to monitor or administer parole.  The incarceration framework was brought before the legislature.  The Board included judges, and magistrates, and so the judiciary was still playing an important role. The NCCS also included members of parliament. Social workers and the Deputy Director of Public Prosecutions were represented on the parole board.  Therefore, across these institutions, the necessary expertise was covered. 

This proposal would further enable the Department to come up with a final classification of offences, instead of the current broader classification with no details. Currently, there was no consistency in the application of parole. This framework would assist the legislature.

The Bill did not in fact seek to address some offenders in a more favourable way than others. The intention was to ensure that the Board was looking at the number of years served, and also at programmes to try to assess whether the offender was rehabilitated. The framework was such that it did not clash with any other law. If such elements were not considered, the DCS may end up with unnecessary litigation and expectations.

Mr Paxton added that at the moment, irrespective of the crime, consideration for parole could be given after half the sentence had been serviced. Determinate-sentenced offenders were currently 90% of the prison population. The category of offences would also be fine tuned through the incarceration framework, which would assist in looking at the prevalence of specific crimes. The secondary factor, proper parole management, was tooled towards managing the offender population. If DCS were able to fine tune parole management it could also properly manage facilities, resources and finance. 

Mr Kriek added that it was a tool that could be used to manage the prison population. Parole was not intended however to alleviate overcrowding.

Mr Paxton emphasised that the Minister already had powers under Section 82 aimed at regulating the prison population. That would be the legal tool used if there were to be a crisis in terms of prison population.

Mr Mahote wanted clarification on the composition of the Council. He asked who the members of parliament would be.

Ms Malebye replied that the Act provided for that, but she was not quite certain about the current composition.

The Chairperson emphatically answered there was nobody that was in consultation with the Committee on this, and he was not consulted.

Mr Selfe looked at what should be the role of parole. He believed it was the management of the offender as part of a rehabilitation plan. In order to do that there was need of a framework, and he accepted that the current framework may be rigid and not adaptable to individual circumstances. However, the Minister and National Council could not intervene into all applications on parole. Because of that they would have to establish another framework and this would give rise to just as much uncertainty and litigation.

Mr Selfe was not sure that this function should be delegated to the Minister. He thought it was a legislative or judicial function, and not an executive function. He urged that much thought should be put into this, as it could create a number of troublesome issues.

Mr Fihla commented that if the twenty-five year conditions was scrapped, and a life-sentence offender was released perhaps after fifteen years, because he had gone through a rehabilitation programme, he was concerned about the communities. Community safety was part of the balance to be struck, and the communities should be at least assured of the fact that those offenders were going to remain in prison for twenty-five years.

Mr M Navara, Legal Services: Parliament, asked for the full citation of the two cases that were furnished in the motivation for the amendment, Botha v State and S v Nkosi. 

Mr Paxton replied that the Botha case was still unreported; but was a Supreme Court of Appeal matter, case number 318 of 1993. The trial judge had recommended that the offender serve at lease two-thirds of his sentence before being ready for parole. It was said that the function of the sentencing officer was merely to determine  the appropriate period of imprisonment for a person convicted of an offence. A court had no control over the minimum period of sentence that ought to be served by the offender. A recommendation of this kind was considered an undesirable incursion into another arm of the State, and was bound to cause tension between the judiciary and the executive.  Courts were not entitles to prescribe to the executive branch of government how long a convicted person should actually be detained, as this would usurp the function of the executive.

Mr Navara also raised the point that Section 84(2) of the principal Act said that the Minister must refer draft legislation and major proposed policy developments regarding the correctional system to the National Council for its comments and advice. He submitted to the Committee that these proposals made by the Department should have submitted to the National Council.  If that had been done, he asked that the advice from the National Council should be made available to the Committee.

Mr Paxton replied that the DCS had a meeting with the National Council on the Amendment Bill, and there were also deliberations thereafter. DCS was not sure about the advice given but would follow up with the minutes of the meeting. 

The Chairperson commented that the Minister was the Executive and the Committee was Parliament. If the Bill was now suggesting that the Minister should take the role of the courts, this would create a serious problem. Mr Fihla was raising the issue of the prevalence of crimes of a serious nature. The principal Act was suggested now to be changed, so that a person sentenced to a life sentence should not get parole until they had served twenty-five years or until they had reached the age of sixty-five. He wanted to know, if the Committee were to agree, what would the Minister’s plan entail, and would he keep them incarcerated for a longer or shorter period.

Mr Xolo agreed with Mr Selfe in that there was a need to have a thorough examination of all issues, and to have foresight. He would imagine the determination would be done by the National Commissioner, and the final say would be with the Minister. The Minister was the political head, therefore he would be the last resort.

The Chairperson agreed that the last appeal should be to the Minister but raised the query that if the Minister had already decided, where would this person then go.

Mr Paxton noted that in terms of the determination for consideration of parole, the Minister only featured in one aspect, currently for those serving life-sentences. These provisions had come into operation on 1 October 2004. Persons sentenced after 1 October 2004 would serve the full twenty-five years.  That meant that the first parole applications of this nature would be in 2029.

Mr Mahote was concerned about the composition of the Board. If the Bill kept making reference to "in consultation with the National Council" he asked who exactly would be consulted.

Mr Paxton replied that currently the general composition of the National Council was two judges of the high court, a magistrate of the regional division, Director or Deputy Director of public prosecutions, two members of the Department above the rank of director, a member of the South African Police Service above the rank of director, a member of the Department of Welfare above the rank of director, two persons who had special knowledge of correctional services but who were not in the service of the State, and then the provision that was previously discussed about the other members. Currently Judge Desai was the Chairperson of the National Council.

Bishop Tolo thought that there had been satisfaction with the condition of twenty five years. He asked what was wrong with that condition that the Department felt that it had to be amended.

Ms Malebye clarified that the Department was not scrapping the twenty-five years. Section section 73(a)(1) stated that the Minister, in consultation with the National Council, by notice in the Government Gazette, would determine minimum periods.  In other words there would be periods determined and published in the Gazette. There was no intention to give the Minister the leeway to determine period case by case.  It would be refined in particular with reference to classification of offences

The Chairperson believed that the provision was worded in a vague way. He could not see any reference to the twenty-five years.

Ms Malebye replied that the incarceration framework would provide that period, and it would be gazetted.

Mr Navara simplified the question further by saying that the Committee wanted to know what was wrong with the condition set of twenty-five years in the principal Act. 

Mr Kriek did not think there was anything wrong nothing wrong with that reference to  twenty-five years. He thought that the Committee was afraid that the DCS would use this amendment to reduce time served. DCS believed it was too rigid. DCS merely wanted a better framework for parole placement.  There were inconsistencies, as with the present legislation it was problematic to remain consistent, with fifty-two parole boards. He said that the Committee should not fear that the DCS would use this to try to reduce the times being served. 

The Chairperson reiterated that if there was nothing wrong with the legislation why were DCS changing it.

Mr Kriek replied that it was not the only reference being changed and that DCS would be following the same principle.

Mr Selfe wanted to know if he was correct in thinking that there would still be a framework that would deal with certain crimes requiring a set amount of time in prison. He did not understand the argument of how the new framework would be less rigid and less flexible, he understood that it would be more sophisticated and that it would take into consideration categories of crime and so forth. There would still be fifty-two parole boards coming up with different decisions around the new framework. 

Mr Selfe further did not understand what role the Committee would play in the determination of this framework.

Mr Kriek agreed there would be a framework, but that it would be more sophisticated. It would have to be approved by the Committee as it would need to be published in the Gazette. 

The Chairperson stated that there had never been any regulation or approval of any framework.

The Chairperson wanted to be clear that the Committee disagreed with the Amendment.  He suggested a change to the effect that a person may not be placed on parole until he or she had served the period determined by the National Council and the National Commissioner. He stated that DCS should delete the reference to the Minister from the Clause.

Mr Selfe asked where in the Act was it set out that the minimum periods for parole would get published in the Gazette.

Mr Kriek replied that in was in Clause 57, section 73A.

Mr Selfe responded that it was simply a notice, which did not have to be referred to the Portfolio Committee, and because of that it would not be correct to say that the Committee would have a say in the dealing with minimum periods for parole.

Clause 59 (c): Amendment of section 74 of Act 111 of 1998, as amended by section 28 of Act 32 of 2001,

The Chairperson noted that the Minister was once again named in this Clause.

Mr Kriek replied that it was to remain consistent.  It was suggested that the Minister approve the release of those serving a life sentence. Presently the National Council advised the Minister and the Minister approved or not.

The Chairperson reiterated that the Minister had to be the last point of appeal and asked why were DCS were not using the National Commissioner.

Mr Kriek responded that the principle was that all life sentences should be considered by the Minister.  There were two systems that DCS was trying to align.

Clause 62: Substitution of section 78 of Act 111 of 1998, subparagraph (2)

The Chairperson noted to the Committee the fact that once again the Minister has been involved.

Clause 70: Substitution of section 86 of Act 111 of 1998,

Mr Selfe was uncertain about what other amendments were contemplated in this clause.

Ms Madeyse brought the Committee’s attention to the document that listed all the amendments to the Clauses 68 – 76. Throughout the Bill the name would now read Judicial Inspectorate for Correctional Services. Clause 70 and 71 would remain as is. Clause 72 was to be omitted from the Bill. Clause 73 would not be withdrawn but there were changes as shown in the above mentioned document. Clause 75 was to remain as is except for the correction of the spelling of the word ‘independent’. Clause 76 was to remain as is.

The Chairperson wanted an explanation on why DCS wanted to change the office of the Judicial Inspectorate and have a Chief Executive Officer (CEO) in this office. The principal Act 85 had said that the Judicial Inspectorate of Prisons was an independent office under the control of the inspecting judge.

Clause 74: Amendment of section 90 of Act 111 of 1998,

Mr Selfe requested clarification on Clause 74 in the Bill which the Department stated should remain as is. He presumed that this meant it would remain as stated, with the exception of changing "inspector general for correctional services".

The Chairperson had a problem with changing the office of the inspectorate.  Clause 74 of the principale Act read that this office inspected or arranged for the inspections of correctional centres to report on the treatment of inmates and to report on conditions of correctional centres. He wanted to know why it should change. The principal Act read that the object of the judicial inspectorate was to facilitate the inspection of prisons in order that the inspecting judge may report on the treatment of prisoners in prison and on conditions on any corrupt or dishonest practises in prisons.

Ms Malebye replied that the office of the Inspectorate did not change, except for the references now to fraud and corruption. Currently the inspecting judge was focussing on the conditions of the prisons and treatment of the prisoners.  There were independent agencies that were dealing with fraud and corruption. The reason for removing it was to enhance the focus of the inspecting judge on the humane treatment of offenders in correctional centres.

The Chairperson remarked that DCS were bringing this office to a mere reporting office.

Ms Malebye replied that their functions did not change.  They would continue with their inspections and monitoring. 

Mr Paxton brought the issue into perspective and said that Section 85 of the principal Act was amended to include corruption and was amended again to exclude corruption. 

The Chairperson remarked that Judge Jali had mentioned the issue that had just been raised. He read from the observations that other government departments had internal anti-corruption units, but even in these situations it was found that there were outside agencies overseeing. In the case of this Department the drafters of the Act originally regarded the Office of the Inspecting Judge to be the appropriate body to oversee the Department. However, it no longer had the function, since Parliament deemed it appropriate to amend the Act. It was the Commission’s considered view that the fight against corruption and misadministration would have to be taken away from the Department and placed under the jurisdiction of an independent office, which wiould be committed to fight corruption and misadministration within the department.

Judge Jali went on to say that since the Department was in the Control of the Commissioner, he could not investigate. It was his view that an independent office should be created apart from the agencies already within the Department. It was the Commission’s further view that the issue of corruption could not be detached from the issue of treatment of inmates. Personally, the Chairperson agreed with this.

A Member noted the concerns of Judge Jali, and said the issue of the departmental investigations unit followed a Cabinet decision in 2005. The creation of departmental investigations unit was not meant to remove the mandate of other overseeing agencies. They were there to ensure that members of the Department themselves were disciplined. They were not interfering with the mandate or function of the judicial inspectorate; the intention was to enhance their functions.

Mr Navara commented that in view of the recommendations by the Jali Commission and since they were busy amending the Correctional Services Act, the DCS could address the issues raised by the Commission, specifically on the issue of the inspectorate.

Ms Malebye replied that issues of fraud and corruption did overlap with other existing bodies. The intention was to enhance monitoring of treatment of the offenders in the prisons.

The Chairperson agreed and supported the unit that they wanted to create,  but stressed that this should be the inspecting judge who had those powers.

Mr Fihla stated that they had to understand each other. Whilst it was clear that the treatment on inmates was part of the role of the inspecting-judge, as long as there was a connection between the unit that they wanted to create and the Inspecting Judge he thought that this would be acceptable.

Mr Selfe supported the Chairperson’s concerns. He was not sure whether the public participation process had covered all these aspects.

The Chairperson raised another concern on the staff component of the Office of Inspecting Judge; currently there was reference to secondment by the Director General.

Ms Malebye replied that this was now corrected to refer to the Public Service.

The Chairperson wanted to know why the DCS wanted to remove the power of appointment from the Office of the Inspectorate

Ms Malebye replied that it was to remove non-judiciary functions, from the judge to the CEO.

Ms Bongiwe Lufundo, Office of the Chief State Law Advisor, responded that this clause could be termed unconstitutional.  The judges were not allowed to perform executive or administrative functions. She referred the Committee to the judgment in the recent case concerning Judge Heath.

The Chairperson reiterated that it was critical that this office remain independent. He accepted that explanation, and perhaps thought they should go the route recommended by Jali Commission.

Mr Gideon Morris, National Manager, Judicial Inspectorate of Prisons, added that to secure the independence, appointment of the CEO should be done by the Inspecting Judge.  He suggested that the phrase ‘seconded by the director general’ be removed.

Clause 97:  Amendment of section 136 of Act 111 of 1998,
The Chairperson noted that this clause again referred to the Minister.

The meeting was adjourned. .

 brought the Committee’s attention to the document that listed all the amendments to the Clauses 68 – 76. Throughout the Bill the name would now read Judicial Inspectorate for Correctional Services. Clause 70 and 71 would remain as is. Clause 72 was to be omitted from the Bill. Clause 73 would not be withdrawn but there were changes as shown in the above mentioned document. Clause 75 was to remain as is except for the correction of the spelling of the word ‘independent’. Clause 76 was to remain as is.

The Chairperson wanted an explanation on why DCS wanted to change the office of the Judicial Inspectorate and have a Chief Executive Officer (CEO) in this office. The principal Act 85 had said that the Judicial Inspectorate of Prisons was an independent office under the control of the inspecting judge.

Clause 74: Amendment of section 90 of Act 111 of 1998,

Mr Selfe requested clarification on Clause 74 in the Bill which the Department stated should remain as is. He presumed that this meant it would remain as stated, with the exception of changing "inspector general for correctional services".

The Chairperson had a problem with changing the office of the inspectorate.  Clause 74 of the principal Act read that this office inspected or arranged for the inspections of correctional centres to report on the treatment of inmates and to report on conditions of correctional centres. He wanted to know why it should change. The principal Act read that the object of the judicial inspectorate was to facilitate the inspection of prisons in order that the inspecting judge may report on the treatment of prisoners in prison and on conditions on any corrupt or dishonest practises in prisons.

Ms Malebye replied that the office of the Inspectorate did not change, except for the references now to fraud and corruption. Currently the inspecting judge was focussing on the conditions of the prisons and treatment of the prisoners.  There were independent agencies that were dealing with fraud and corruption. The reason for removing it was to enhance the focus of the inspecting judge on the humane treatment of offenders in correctional centres.

The Chairperson remarked that DCS were bringing this office to a mere reporting office.

Ms Malebye replied that their functions did not change.  They would continue with their inspections and monitoring. 

Mr Paxton brought the issue into perspective and said that Section 85 of the principal Act was amended to include corruption and was amended again to exclude corruption. 

The Chairperson remarked that Judge Jali had mentioned the issue that had just been raised. He read from the observations that other government departments had internal anti-corruption units, but even in these situations it was found that there were outside agencies overseeing. In the case of this Department the drafters of the Act originally regarded the Office of the Inspecting Judge to be the appropriate body to oversee the Department. However, it no longer had the function, since Parliament deemed it appropriate to amend the Act. It was the Commission’s considered view that the fight against corruption and misadministration would have to be taken away from the Department and placed under the jurisdiction of an independent office, which would be committed to fight corruption and misadministration within the department.

Judge Jali went on to say that since the Department was in the Control of the Commissioner, he could not investigate. It was his view that an independent office should be created apart from the agencies already within the Department. It was the Commission’s further view that the issue of corruption could not be detached from the issue of treatment of inmates. Personally, the Chairperson agreed with this.

A Member noted the concerns of Judge Jali, and said the issue of the departmental investigations unit followed a Cabinet decision in 2005. The creation of departmental investigations unit was not meant to remove the mandate of other overseeing agencies. They were there to ensure that members of the Department themselves were disciplined. They were not interfering with the mandate or function of the judicial inspectorate; the intention was to enhance their functions.

Mr Navara commented that in view of the recommendations by the Jali Commission and since they were busy amending the Correctional Services Act, the DCS could address the issues raised by the Commission, specifically on the issue of the inspectorate.

Ms Malebye replied that issues of fraud and corruption did overlap with other existing bodies. The intention was to enhance monitoring of treatment of the offenders in the prisons.

The Chairperson agreed and supported the unit that they wanted to create,  but stressed that this should be the inspecting judge who had those powers.

Mr Fihla stated that they had to understand each other. Whilst it was clear that the treatment on inmates was part of the role of the inspecting-judge, as long as there was a connection between the unit that they wanted to create and the Inspecting Judge he thought that this would be acceptable.

Mr Selfe supported the Chairperson’s concerns. He was not sure whether the public participation process had covered all these aspects.

The Chairperson raised another concern on the staff component of the Office of Inspecting Judge; currently there was reference to secondment by the Director General.

Ms Malebye replied that this was now corrected to refer to the Public Service.

The Chairperson wanted to know why the DCS wanted to remove the power of appointment from the Office of the Inspectorate

Ms Malebye replied that it was to remove non-judiciary functions, from the judge to the CEO.

Ms Bongiwe Lufundo, Office of the Chief State Law Advisor, responded that this clause could be termed unconstitutional.  The judges were not allowed to perform executive or administrative functions. She referred the Committee to the judgment in the recent case concerning Judge Heath.

The Chairperson reiterated that it was critical that this office remain independent. He accepted that explanation, and perhaps thought they should go the route recommended by Jali Commission.

Mr Gideon Morris, National Manager, Judicial Inspectorate of Prisons, added that to secure the independence, appointment of the CEO should be done by the Inspecting Judge.  He suggested that the phrase ‘seconded by the director general’ be removed.

Clause 97:  Amendment of section 136 of Act 111 of 1998,
The Chairperson noted that this clause again referred to the Minister.

The meeting was adjourned. .