Judicial Inspectorate for Correctional Services on Business Case and Operating Model

Meeting report

The Chairperson welcomed everyone and informed the Committee that he had received a correspondence from the Speaker of the National Assembly with regards to s 194 of the Constitution.

Members of the committee and the delegation from the Judicial Inspectorate for Correctional Services (JICS) introduced themselves.

 

Judicial Inspectorate for Correctional Services (JICS) Business Case/Operating Model

Justice Johann van der Westhuizen, Inspecting Judge, explained that the Inspectorate draws its primary mandate from the Correctional Services Act (CSA) 111 of 1998, as amended. Chapter IX of the CSA establishes the Inspectorate as an independent office under the control of the Inspecting Judge. It further provides that the object of the Judicial Inspectorate is to facilitate the inspection of correctional centres in order that the Inspecting Judge may report on the treatment of inmates in correctional centres and on conditions in correctional centres. The CSA also makes provision for the appointment of a Chief Executive Officer, staff and assistants and source of funding of the organization.

The JICS is required to report to the Department of correctional Services (DCS) – the very department that it is supposed to hold accountable. The CEO is appointed by the National Commissioner and is accountable to him/her. This undermines the independence of the entity and the CEO as they are beholden to the very entity that they are in charge of overseeing. At the moment there is a court judgment reserved in the Western Cape around the issue of the independence of JICS.

Justice Johann van der Westhuizen informed Members’ that there was an incident at St. Albans in Port Elizabeth two days ago where an official was injured and an inmate died. JICS is looking into it. The official statement noted that ‘the minimum use of force resulted in the death of the inmate’ – so one wonders what the maximum use of force would mean. These are the official terms that people get caught up in because the legislation mentions them.

Another issue is the situation at Goedemoed, which involved the stabbing, murder and rape that took place there. JICS is looking into it as well as the situation at that centre since that incident took place.

The main problem at correctional facilities is overcrowding. There are 243 centres in South Africa, two of which are privately run. Only three centres in South Africa are not overcrowded – the two privately run ones and the Supermax facility in Kokstad. Generally, most correctional centres are 150% full across the board. This leads to a lot of problems. The Department of Correctional Services (DCS) has a shortage of staff, so some places find it difficult to arrange meal times et cetera.

There’s a lot of gang activity. The Western Cape is notorious for gangs, but anecdotally it is worse in places like Potchefstroom and Klerksdorp where men of 17, 18 are gang members. When you ask them why are you in a gang they say we kill each other. Gangsterism has some rationality since people make money and it is a kind of a business but the level of desperation that exists in these places is the only reason the gangs exist is to kill the other members. If you ask ‘what if you get killed’ then the answer is ‘so be it’.

There is a shortage of uniforms and in some places there is a shortage of shoes. So in some places like Elliotdale where we saw in the middle of winter prisoners wearing little things that their family bought at the nearest Pep store or whatever. The facilities at St. Albans are bad. There are two or three places made out of tin – out of corrugated iron. In addition, some of the state of the art places and state of the art equipment is not used since people do not know how to use them, or they break down and people do not know how to fix them. In one incident a R3 million metal detector was in the box unopened for three, four years. In places like Tswelopele in Kimberley which is a state of the art building they do not have hot water and the explanation is the engineers cannot repair the plumbing system – it is too sophisticated for local engineers.

Some centres are quite good, to be fair. Some of the newer youth centres in Brandvlei and Baviaanspoort outside Tshwane – we do not need to be ashamed of them and they can compare with anywhere in the world, including places like London, Tunisia, Portugal and in the United States. So some facilities we do not have to be ashamed of at all but some are very, very bad.

The corrugated iron facilities – you can imagine the heat – I went from the prison to the nearest Pakistani store to buy them some fans.

Generally, JICS is doing fine. Three years ago there was a feeling that JICS was not being taken seriously. One of the things JICS did was have fairly common meetings with the previous minister. One of the things encouraged by the previous deputy minister was to lift the public profile of the entity. So in 2016/17 JICS developed a new logo and corporate image. This included hiring a spokesperson. Generally, things are looking a lot better but there are problems.

With regards to an incident such as the recent one in St. Albans – JICS cannot really compete so far as an investigation is concerned with DCS and the police. JICS has been disappointed with the conduct of the Police and the National Prosecuting Authority. The notorious example is what happened in Brandvlei a few years ago which was a prima facie case of murder and it is only now that JICS has had discussions with the new National Director of Public Prosecutions (NDPP) that there has been some intimation that prosecutions will follow.

As regards the relationship with the DCS, JICS is trying to make it clear that they are not their enemies nor are there to embarrass them. But sometimes the DCS gets angry when JICS make statements – even when the statements support the DCS, such as when JICS says the work of the DCS is very hard. JICS cannot report on any overt tension but at times it can be very frustrating. Sometimes there seems to be an attitude that JICS must stay quiet and let the DCS do their work. JICS cannot understand – when the matters take months for DCS to make their findings - why it (JICS) cannot make a preliminary report into the matter.

Sometimes, when there is a problem with the facilities, everyone ends up blaming Public Works. The link between DCS and Public Works has not been deciphered by JICS. JICS is preparing a report which will contain more questions than answers. Confidentially, people very high up in DCS tell you that there is corruption in Public Works. But it is not the job of JICS to go into those allegations – JICS is not the Zondo commission.

Mr Vick Misser, Chief Executive Officer, JICS, stated that JICS operated within a domain of the Correctional Services Act specifically with regards to chapters 9 and 10. JICS is under the control of the Inspecting Judge.

JICS had a staff complement of 86 people, which includes the Inspecting Judge, the CEO, and some top management. Beyond this, at the operational level, JICS had what is called the Independent Correctional Centre Visitor Programme (ICCV). These are JICS’ monitors stationed at the respective correctional services who are the eyes and ears of the Inspecting Judge and monitor all issues and activities within those areas. They report daily, weekly and monthly, which is contained in JICS’ quarterly and annual reports. This is an effective programme; there is a presence in almost all centres. There are 196 ICCVs on the books. JICS is on a serious recruitment drive for more ICCVs as there is a vacancy rate of about 86 currently which is now being filled.

The Core function in JICS’ operating model is to investigate and inspect correctional centres and generate a report. JICS revaluated this and reassessed it so that in future they will be rating each correctional centre in terms of three categories – ‘good’, ‘satisfactory’, and ‘unsatisfactory’. This makes it easier to present to the Portfolio Committee on the status of the correctional centres.

One area which is also tasked to JICS is to conduct investigations into incidents like the most recent one at St. Albans. At an operational level, JICS has a huge gap to report on incidents such as the one in St. Albans. This is one area that JICS have built into their business case.

There are 243 centres in the country, with an average population on the books of 162 000 inmates. DCS has approximately 41 000 employees and a budget of almost R 21.5 billion. But in comparison JICS, that is supposed to exercise oversight over the whole department, has 86 employees and 196 ICCVs, which brings the establishment staff to just under 300 staff and a budget of R 71 million. JICS is completely dependant on the DCS for IT infrastructure, and totally dependent on DCS when it comes to appointments. Likewise, logistics, purchasing goods, JICS is totally dependent on DCS.

One area contained in the report is the information management system. This is an online reporting system where DCS right down to the levels of heads of centres are required to report on a daily basis on deaths, on segregations, including use of force. These are not reported since the system does not work. One example is the St. Albans incident on Sunday – if JICS did not request information on Monday morning it would not have been able to report on the incident. This electronic management system is very important – JICS is reliant on it since by a press of the button it can tell how many deaths have occurred, natural or unnatural, how many people have been segregated and so on in the centres. But now JICS cannot do this since the system is not working. JICS has currently substituted this with a manual reporting system where the National Commissioner has signed off his circular and submitted this throughout the value chain and right down to heads of centres in order for them to comply manually so that they can provide the information to JICS manually and comply with the Act.

JICS is operating within an environment with the bare minimum. You will find that from time to time DCS will say that they have 346 deaths that are natural but after autopsy reports they are converted to unnatural deaths. So these deviations are based on the fact that JICS reporting is based on actual information as it visits each centre.

When the current team came in, JICS would only visit each centre once every three years. These days JICS is aiming to increase reporting on centres from 33.3% per performance cycle to at least 50% per performance cycle. But JICS cannot report on all centres since there is a trade-off with the quality of the reporting.

Every single death must be investigated, irrespective of whether it is natural or otherwise. JICS has synergised with the NDPP to assist with these investigations. JICS has synergised its operations with the police at a national level. JICS should not just be reporting – all of these investigations should be taken to its max. Likewise, JICS has synergised its relationship with the Hawks. Also, IPID is on board with the JICS to assist it.

Lastly, South Africa is a signatory of the UN Convention Against Torture and Inhuman Cruelty. JICS has aligned and tested the Mandela rules. Justice van der Westhuizen serves on the National Preventative Mechanism. There is still a lot to be done. JICS will act without fear, favour or prejudice.

Justice van der Westhuizen added that the budget of JICS is one third of the kitchen at Pollsmoor Prison. Though this is not a fair comparison, it shows the massive difference in size between DCS and JICS.

However, the good news: DCS must be given credit for their very good record keeping. Generally, when a centre is visited, DCS can tell one exactly where everyone is. People do not disappear into a dark hole such as may be the case in Latin America or in other African countries.

Sometimes, the General Civil Service Regulations require certain levels of qualifications and JICS finds that someone who has been doing that job for several years does not qualify. That is a problem it is addressing.

As regards independence, of course nobody is independent. The Chief Justice’s salary must come from somewhere. The courts are the hardest form of independence. JICS is not a Chapter 9 institution like the Public Protector or the Human Rights Commission. The Constitution does not even mention JICS, though it does mention the basic rights of inmates. One part of the debate is whether JICS is taken seriously. An NGO, Sonke Gender Justice, launched a constitutional attack on the Correctional Services Act, on the basis that JICS is not sufficiently independent. The case was heard in the High Court in Cape Town. Judgment is reserved. But, from very early on, in 2017, when the Presidency’s lawyers arranged for a meeting with all the respondents and lawyers, there was an agreement among every one that JICS should be more independent. So a working group was set up, and the plan was what is now called the ‘business case’. The idea is that JICS is a programme within DCS, they looked at international oversight bodies, but some countries are not comparable since their legal systems are very different. They developed a model and did public consultations, and had a seminar in March. What emerged from all of this is the ‘business case’. The conclusion was that JICS should not be a programme within DCS but should be a ‘government component’ – that is the terminology used. That would mean that JICS is further away from DCS and closer to either the Department of Justice or the Department of Public Service and Administration. DCS must not be able to say that they will not give JICS enough petrol to drive to the places that they need to go to. Though the business model will help JICS, it may be necessary – this is where Parliament will get involved – for either an amendment to the Act or an entirely new Act.

As regards term of office, the tradition prior to Justice van der Westhuizen’s appointment was to be appointed for a period of three years. But after this appointment they discovered no period was stated.  Justice van der Westhuizen’s term expires after the end of this month. The recommendation in any case is that three years is too short. On the other hand, it will be better to make it a five-year non-renewable term. The advantage is that one then does not have to worry whether you offend the Minister or anyone else. So it will be good for independence.

Another issue is that JICS does not have an office. JICS – to use a politically incorrect term – it squats from place to place. Initially JICS was only based in Cape Town, but now has a presence in six regions. JICS has an office in Centurion for the northern regions but it is far too small. There are eight people sitting in a small room. As regards the head office, National Commissioner Modise said he would arrange an office but it has still not occurred. For a few months, JICS was in a building in Pretoria, but it was dangerous – the elevators got stuck. At the moment, JICS is occupying two floors within DCS.

Discussion

Adv H Mohamed (ANC) noted the frustration as regards the office space and the Justice’s comments as regards changes in the term of office of the Inspecting Judge. However, the tradition of a three-year office has good reasons behind it – in particular the interdependence of JICS and the DCS. On the independence of JICS, it seemed many of the arguments are analogous to the office of the Chief Justice which had gone through a similar process recently. He added that, the more you ask for, the more you will be responsible for.

Ms N Maseko-Jele (ANC) thanked the judge and the CEO for the informative presentation. There is a perception in the community that prison is like a hotel. So how can we balance that? In terms of overcrowding, those private institutions, why are they not overcrowded? There was a mention that there is new equipment that is not used – is that because management is not making use of that element of training? What is the recommendation in terms of that? On the Independent Correctional Centre Visitor (ICCV) programme, is it that there is a reduction in terms of the budget because initially the CEO was saying that JICS would use consultants to do similar work like this. On the part of the very same ICCVs, the CEO says you place them in a centre for three hours or five hours – is it enough for them to be there to be able to see or get a picture of what is happening in that centre? What do you do in the case that they have overstayed their work, and you find that in future they get used to the situation, they begin to become comfortable, and they end up not doing their job properly? Lastly, on the information system, is it going to be working in line with the ICCV programme because the ICCVs must be there to collect information?

Mr X Nqola (ANC) thanked JICS for the report, but remarked that the Committee is in a very bad mood due to the lawlessness that is taking over the country. There is a report about a four-year-old girl that has been murdered in Bloemfontein. That is a signal of institutionalised gangsterism in the country – there seems to be a syndicate network – but we do not seem to be making any progress with regards to this issue. What are the problems here? There was mention of some rigid tendencies of the DCS officials which makes JICS’ job difficult. With the ICCVs, are there similar instances where they are not allowed access to centres or information? Part of JICS’ responsibilities is to report on corrupt and dishonest practices. It is public knowledge that there is a Bosasa scout in the DCS. What mechanisms do you take to root out a corrupt and dishonest practice? Lastly, after investigation and report, what happens once JICS has found wrongdoing?

Prof C Msimang (IFP) thanked JICS for the report. It painted a clear picture of the situation in correctional services. There are two concerns to emphasize. Are we winning the war on criminality? Most of our centres are up to 150% overcrowded. We need to build more centres. Does that mean the increase of criminality or the reduction of criminality? How do we compare with the countries mentioned in the report? The move from a penalising approach to a rehabilitating approach was going to have a positive spinoff for the country. However, the report is saying that there is an increase of wrongful conduct by inmates in correctional services. This happens when they are being rehabilitated. So how can we make rehabilitation more effective? There are also unacceptable rates of recidivism, so the rehabilitation does not seem to be working. The people who come to you to be rehabilitated are the people who perhaps should be treated elsewhere, since it seems the symptoms are being treated but not the causes.

Ms W Newhoudt-Druchen (ANC) commented on the mood of the country, in light of what has happened in the last few days. It is particularly concerning as the mother of a girl child. If every perpetrator says that they have a reason to harm a woman or a child then it is very worrying. As regards the ICCVs, what is the programme? On the relationship between DCS and JICS, what is the status? T

Ms Newhoudt-Druchen noted that JICS operates in five provinces only and asked what about the other four?

Adv G Breytenbach (DA) asked whether the judge is prepared to share the draft bill with the Committee. What can the Committee do, practically, to assist? St. Albans is an absolute disgrace. What can the Committee do about that?

Mr J Selfe (DA) thanked the Justice and CEO. The Justice referred to the National Preventative Mechanism and that he is working closely with the Human Rights Commission. There are conditions in many correctional centres that constitute human rights abuses and may even constitute torture. It is all very well to have committed ourselves to the UN Convention but the practical reality is horrible. What goes on inside the prisons is not remotely consistent with human dignity. Section 7(1) of the Act says that inmates must be kept in spaces that keep to minimum standards. Probably half the prisons in South Africa do not conform with this section. As regards the governing component, on the slide it says that some of the governance and organisational challenges will be resolved. But what governance challenges are not addressed by the business case, and why are some challenges left out? Should we not address the problem holistically? One of the many casualties of not having a separate committee on correctional services is that if a matter was reported by JICS the Committee can no longer help to get the DCS to report back.

Mr W Horn (DA) raised the matter of the ICCVs. Unfortunately, most inmates are not aware of the ICCVs. How does JICS go about to present the ICCVs to the centres? In terms of the Act it says the ICCVs must deal with complaints but if the bulk of inmates are not aware of them then how do they get to complaints? Finally, the visitor’s committee that is supposed to be the next level of dealing with unresolved complaints – how well is that functioning?

Adv S Swart (ACDP) echoed concerns about the increasing lawlessness in the country, adding that last night he woke up to gun shots. This raises the issue of the efficacy of rehabilitation and levels of recidivism. As regards the business model, it has been discussed for a long time but the process is lined with the executive. The Minister is still looking at the business model. The Committee needs to talk to them, otherwise the matter will be overdrawn.

Adv T Mulaudzi (EFF) sympathised with the Justice. In terms of the Maths it seems that one ICCV is monitoring 2050 inmates. On slide four of the presentation, the only office that is dealing with the old Transvaal, is one office in Centurion with eight people. How can this do justice to four provinces? The other comment is about the status of the draft bill – why is the amendment of the legislation kept away from the Committee? The Information Management System – isn’t there a remedial action for this? How many criminal cases have been opened against officials in the Department? Does JICS have a call centre where people can report? As regards the 2017/18 report, it states there were 3 grievances, 2 of which were resolved. What is the status of the unresolved grievance? Lastly, as regards the budget of 2017/18, JICS underspent R 18 million, why was this the case? Lastly, as regards s 88A – there is a conflict of interest, the National Commissioner appoints the CEO who is supposed to provide oversight over the National Commissioner.

Justice van der Westhuizen responded. The statistics say there are more than 52 murders per day in South Africa. The term ‘institutionalised gangsterism’ is a very good term and it is absolutely correct. These gangs operate inside and outside prisons. In the Western Cape, the numbers gang has always been the main problem. To some extent, ironically, the gang system helped officials, because if there was trouble brewing, you could go to a retired gang member who perhaps is working as a preacher, and he would resolve the problem for you. But these days there are new infiltrations, there are foreign gangs fighting for the turf.

How do we balance the war against crime against the demands of the Constitution? The answer is simple, but perhaps a bit theoretical. Obviously, criminals must be put behind bars. We do have to protect society. Serial killers can not walk around. Receiving a prison sentence means some of your rights are severely curtailed, such as your freedom of movement. However, other rights cannot be curtailed. Your right to life and food, to decent medicine cannot be curtailed.

In Goedemoed a female prison warden was stabbed to death with scissors and another was raped. The man who did it was serving a life sentence for murder and rape. The question is how was he classified as a medium inmate as opposed to a maximum inmate and assigned to clean offices where there were female officials – JICS is working towards finding this out.

On that day he was cleaning the office, he created a diversion in the cells, the men ran there, he locked himself in an office and picked up the hammer that they use to test locks that happened to be there and hit the female warden on the head and picked up broken scissors that also happened to be there, and stabbed her to death in her neck.

When they asked him why he did it, he said because they violated my dignity. It is alleged that the woman who was killed had a history of insulting inmates. It may be there was a syndicate involved – a statement obtained from the inmate admits he was promised money to do it but also includes allegations of witchcraft.

Of course these people must be in prison. It is the job of JICS to find out whether they are tortured if there are such allegations. To fight against crime, it does not help to put the wrong people in prison. And secondly, when they are in prison, we have to make sure their rights are protected. The reality in South Africa is that some people’s lives are better in prison than outside. So some people commit crimes – there was a Carte Blanche special on this – just to go to prison.

Babies get better food and medicine than they would ever get outside. But after the first two years, they must be socialised. So there are programmes to make them run and play outside. The harsh reality is that it is not a hotel but given the reality of poverty it is better for some people. In the flats they joke it is a rehab centre where they go a few months to get off tik.

On the draft bill, it can not be shared because it was only given to JICS a few days ago and it still needs to be read.

The ICCVs – how they are identified – there was a problem that inmates did not know the difference between their ICCVs and those of the DCS. They have been given vests to be identified. Sometimes, an ICCV listens to a serious complaint but then nothing happens. Sometimes the ICCVs report irrelevant things. Sometimes they report on prisoners asking for sunglasses. So they must be trained better.

As regards overcrowding, the problem starts when the police arrest someone. As regards bail, the magistrate needs a lot of information to release someone on bail, from the prosecution and the police. Often people don’t pay the bail. As regards sentencing, if it is a short sentence other methods must be used – putting someone in prison for 7 days does nothing but make them join a gang.

In some rural communities, the village head does not want to allow the mother to receive the son after he has served 17 years because the village head says he does not want criminals in his community.

It happens sometimes that the police and correctional services blame each other, which is why JICS has to work with IPID.

On corruption, so far JICS has been limited to small scale corruption. JICS does not have capacity to deal with big things such as tender fraud.

Private institutions are not overcrowded because they operate in terms of a contract with the government and they do not allow more inmates than are allowed in terms of that contract.

On how we compare to other countries – we are in the middle. We are not Norway. But neither are we as bad as other countries. Never mind Africa or South America - prisons in Russia are a lot worse, they look like concentration camps.

Mr Misser explained that the business case includes memoranda of understanding with the National Commissioner as JICS moves out of DCS.

Corruption is a specialised niche. This is an expert field – in the new business model there is a new unit named the Investigation Unit dealing specifically with things like corruption, torture, etc. The Bosasa matter has already been brought to JICS’ attention by the Zondo commission and JICS has responded to that.

Justice van der Westhuizen interjected that the kitchens run by Bosasa looked better than the kitchens run by the DCS, so JICS did not really find anything untoward about Bosasa’s dealings. Although of course Bosasa did have a larger budget per kitchen than DCS. It was very hard to make findings on high level corruption without having a proper investigation.

Mr Misser said that on a quarterly basis the Justice meets with the Minister and takes the Minister through all the activities that happened during that period.

The visitor’s committees are established in terms of the Act. They sat every month. There are 36 visitor’s committees that have been established. All stakeholders are invited to the visitor’s committee meetings.

On the online reporting system, when the current leadership were appointed the website was not working. They fixed this and the website went live but then, for reasons beyond their control, it went dead again.

On the one unresolved grievance, JICS will come back to the Committee to report back. They did not have information on hand to answer that question.

On the R 18 million underspent, at that time there were no monitoring systems in place to check the funding and spending. That is now in place in the current cycle. Every month a report is generated on spending trends and patterns, and procurement plans – and in this financial year 2018/19 JICS has spent 93.3% of their budget.

Mr Lennard de Souza, Manager: Inspections and Investigations, JICS, stated that the challenge currently is with the DCS, because it is not employed by JICS it cannot be forced to speak to JICS. When investigations are done they are done thoroughly, and a report is written. The investigators work with the SAPS and will monitor the case until it goes to the NPA.

Mr Misser admitted that sometimes an ICCV becomes comfortable in an environment and does not report.

Justice van der Westhuizen added that the business case, even if it goes through, will not take them all the way. An amendment to the Act is required. At first it was thought that amendments to the Act were going to be very minimal. But that view has changed; the amendment will be more thorough than previously thought.

There is a debate that JICS’ powers must be more, that it must be able to make binding recommendations. But the more the powers are, the more the decisions are taken on review, so JICS is slightly hesitant, since powers that are too forcefully binding might lead to court review.

The Act says that on every inspection, the judge must report to the Minister and to the Portfolio Committee. But this is not going to work because some inspections are fairly innocuous. After an inspection the report is first sent to the centre so that they can correct any incorrect findings and since it is a problem that sits with them – the higher up one goes, it gets more difficult to see results. What has happened in the past is that each inspection was noted in a quarterly report which for some reason was handed to the National Commissioner. What this has meant is that when JICS complains about something – say it needs more laptops – the Commissioner will ask about the quarterly report, saying he has not yet received it. But JICS does not owe the Commissioner any such report.

As regards the size of cells, it is unclear what the policy is. Of course, there are the Mandela rules but they are not always followed nor do they need to be since they are not law.

As regards the Embongweni Supermax facility, it is controversial worldwide. The concerns there are the hours of solitary confinement not in line with the Mandela rules. Though the Mandela rules are not law, the Act is, but the Act may be unconstitutional. People are locked up for 23 hours. When they are free they remain alone. They are never with anyone else. Though the security is important, the inmates’ rights must not be infringed. Most of the inmates are on antidepressants.

The Chairperson thanked the JCIS for the briefing and for the work that they are doing under difficult conditions. The matter will be referred to the subcommittee on correctional sevices (newly established), in particular the matter of reviewing the legislation in a comprehensive way, and the business model. It is important that the purpose of the Act, even if it is found to be unconstitutional, is not frustrated by officials. Independence of JICS must not be compromised. We want a situation where people who come out of prisons must be better citizens after they have served their sentences.

There will also be interaction with the Minister to try and track the legislation, and perhaps even the Portfolio Committee on Public Works. Some of the things are not big problems with infrastructure, they are simply taps that do not close and that takes six or eight months to solve.

The Chairperson informed that Committee that it will meet with the Gender Commission on the following day.

The meeting was adjourned.