DCS 2020/21 Quarter 4 Performance; DCS High Litigation costs; with Deputy Minister

Meeting report

Department of Correctional Services: Quarter Four Performance Report

The Department of Correctional Services (DCS) took the Committee through a detailed report of its 2020/21 fourth quarter performance. The following improvement plans had been put in place to address areas of under-performance in the quarter:

• Targets had been reviewed for the 2021/22 financial year, taking into consideration the budget reductions and operational environment changes brought about by COVID-19.
• The training plan for anti-corruption awareness workshops were revised, taking into consideration the COVID-19 working arrangements.
• Plans to accelerate investigations had been put in place.
• The human resources (HR) strategy and finance and supply chain management (SCM) strategy would be approved in the 2021/22 financial year.
• The DCS would further engage with the Department of Employment and Labour (DEL) to find an amenable shift system, guided by the policy framework.
• It would monitor compliance with the employment equity (EE) plan for new appointments.
• The Department was developing alternative solution proposals for inmate communication systems and sensing and surveillance systems.
• There was ongoing engagement with the State Information Technology Agency (SITA) to manage delays in procurement.
• A review of the Integrated Inmate Management System (IIMS) roll out plan to ensure resources and COVID-19 restrictions had been considered.

The Department's presentation contained a summary and analysis of the expenditure per programme for the year ending on March 31 2021.

The Department had met 37 of its 52 targets for the quarter (71%) – this was an improvement from the quarter four performance of the three prior financial years.

Referring to the compensation of employees (CoE), the DCS said the executive management had decided that the HR branch must clean up the Personnel Administration System (PERSAL) in order to ensure a credible database for reconciliation with the human resources budget plan (HRBP) tool. This process of aligning PERSAL to the HRBP tool remained incomplete due to the further cutting of posts which had to be incorporated into this alignment. Aligning PERSAL to the HRBP tool was therefore expected to be finalised by 30 September. The permanent funded establishment, as published in the 2020 estimates of national expenditure (ENE) was reported to be 37 758, against the permanent PERSAL establishment of 42 431, resulting in a variance of 4 673 posts.

The financial report indicated that the year-to-date expenditure of the DCS at 31 March amounted to R25.027 billion, or 97.77% of the revised budget of R25.597 billion, resulting in under-spending of R570 million.

(See attached document for details)

Discussion

Ms W Newhoudt-Druchen (ANC) asked what percentage of the Department’s staff and inmates had already been vaccinated to stop the rapid spread of Covid-19. The Department could submit the statistics in writing. The number of escapes in Malmesbury was very high, and had occurred during the transportation of inmates. The DCS could not continue to use the Covid-19 pandemic as an excuse. What measures did it have in place to prevent inmates from escaping?

The DCS had indicated in its presentation that it had not reached its targets for employing individuals with disabilities. What did it plan to do to achieve this target?  She commented that a lot of the DCS under-spending was in the administration programme. The information technology (IT) targets were not met at the end of the financial year, and she asked what progress was being made.

The Department had indicated that social auxiliary workers (SAW) would assist in the restorative justice process. She said that during a visit to Darling, a councillor had indicated that victims and the community were not informed about inmates being released. She asked how the SAWs would assist in the restorative justice process, because it was not working in Darling. The victims and community had confronted the South African Police Service (SAPS) about not being notified about the inmate’s release. The SAPS had responded that they did not deal with such issues. She asked the DCS how this could continue, because the victims and communities must be consulted before an inmate’s release.

DCS Responses

Mr Lucky Mthethwa, Chief Deputy Commissioner: Incarceration and Corrections, DCS, replied to Ms Newhoudt-Druchen about the escapes, and said that one escape was too many. The DCS had completed its investigation and decided on the measures that needed to be implemented. It had decided to look not only at the Malmesbury case, but at all the escape cases. It had informed all the regions that when there was a security breach, they had to establish the causes. The Department observed that the plan would not work for all correctional facilities. In the case of the Malmesbury incident, it had been found that its structure was very old and the structural defects had to be fixed.

To prevent any escape incidents, the DCS had decided to enforce its standard operating procedures (SOPs). The SOPs had been approved by the National Commissioner and were aligned with the Covid-19 pandemic. They had been implemented because officials were scared to follow procedures like searches because of the Covid-19 virus. The screening of inmates and officials was important, to remove fears of contracting the virus. Facilities had been rated to identify hot spots of the virus, in order to implement the necessary procedures.

Random night searches, foot patrols and the rotation of inmates was being implemented to prevent any inmates from escaping. The DCS planned to implement an integrated security strategy (ISS) which had a defensive approach to prevent or detect any incident. The gang-combating strategy was part of the ISS. Since the implementation of these measures, the escape rate had dropped significantly.

The Department replied to Ms Newhoudt-Druchen’s question regarding the non-achieved target, and said it had not implemented the mass-network for the ISS because of the budget cuts. The DCS had prioritised this target because it would assist it in monitoring the entire country’s correctional facilities.

Ms Anna Molepo, Chief Deputy Commissioner (CDC): Community Corrections, told Ms Newhoudt-Druchen that social auxiliary workers would assist in tracing victims of crime. They would ensure that victims engaged in the victim-offender dialogues, and would prepare the victims for the process. The victims were expected to participate in the parole board processes before the inmates could be released on parole. The DCS was working with various stakeholders in communities and the SAPS to help trace victims of crime.

Mr Samuel Thobakgale, CDC: Incarcerations, said that as of 1 September, 59.26% of inmates had been vaccinated.

Replying to the question about restorative justice, he said that for the parole process to be completed, a victim-offender dialogue must happen. The DCS would look into the cases that had happened in the Darling area. In cases where it was difficult to trace the victims, the DCS would work together with the SAPS. The SAPS was part of the parole process -- as the link between the communities where the crimes took place -- to inform and prepare the community if an inmate was being placed on parole. He suggested that the DCS should provide a written report about the events in the Darling area.

Ms Cynthia Ramulifho, CDC: Human Resources (HR), said that 79.5% of the DCS's health workers and 61.4% of the DCS officials over the age of 60 had been vaccinated. 59% of the DCS officials of all ages had been vaccinated. The DCS had been working closely with the Department of Health (DOH) to record the correct number of officials that had been vaccinated. Most of the officials had received the first dose of the vaccination. It was difficult to vaccinate all of the officials because of their religious beliefs. The  HR department was working closely with the DOH to ensure all the DCS's officials were vaccinated.

She said the DSC had not reached its 2019/20 vacancy targets for disabled individuals because of budget cuts. It had reprioritised the budget for the employment equity (EE) targets to employ individuals with disabilities. It was working closely with National Treasury to finalise the HR budget plan to address the EE targets.

Further discussion

Mr W Horn (DA) raised concerns that in 2015/16, National Treasury (NT) had indicated that the integrated inmate management system must not be implemented. The DCS had still proceeded with the IIMS. The DCS was giving the same reasons why it had not reached its targets -- because of travel restrictions between regions. This was not true, because travel was restricted only between April and May, at the beginning of the financial year. The DCS must explain why this was the reason for underperformance in quarter four.

The Department had indicated ten months ago in the budget review, that the contract of the service provider for the project had expired, and that the DCS would undertake it. It had promised that the best equipped officials to roll out the project would be employed. He asked if they had been employed. The DCS had indicated that certain sites were not suitable for the rollout of the project, and that this would be reprioritised. Had this been implemented? He asked the DCS to explain and provide practical examples of the term ‘correct solutions’ not being available, because he did not understand this reasoning for the under-performance. The majority of the sites were not suitable for this type of advanced technology. He asked when the DCS would stop wasting money on this project.

He did not understand why the DCS had indicated that it had not achieved its targets because of budget constraints. The annual performance plan (APP) was aligned with the annual budget. Was this an indication that the DCS admits that its APP and targets were a wish-list? He asked the DCS what progress have been made on the capital programme because it was not mentioned in the programme. The Committee could not accept that the DCS projects took such a long time to complete.

He said the chairperson of the audit committee would always be present to indicate how it assisted the Department on its financial reports. He asked why the chairperson was not present.

DCS Responses

The DCS said that the resources it had for the IIMS system were the internal trainers from the college, who assisted in training its officials. At the beginning of the 2020/21 financial year, 11 sites used the system, and currently 75 sites used the system, which indicated the progress because of the training of officials. The reason why there was a lack of development was because the DCS did not have adequate developers to develop its system to complete the remainder. This had been done without any external assistance. Every site got evaluated to determine what technology the site required, like computers, cameras and biometric devices. This equipment was procured from head office, although it had not been budgeted for by management.

The term ‘correct solutions’ was related to the offender-telephone system (OTS). A number of sites did not have an OTS, and because visits were limited, it was required that an OTS was deployed. When the DCS conducted a request for quotation (RFQ), it was found that Telkom do not produce or fix those types of telephones anymore. Telephone networkers could provide phones only for office use, and it was determined that inmates would destroy them. Therefore, the ‘correct solution’ was not determined. The DCS was working with stakeholders to deploy an OTS that would be suitable for correctional facilities.

Mr Nick Ligege, Chief Financial Officer (CFO), DCS, replied to Mr Horn's question, and said that the budget cuts would not stop projects. It would delay projects that had been planned, like the construction in the area of Parys, which was making progress. The facilities that had only been designed but not yet constructed, would also be delayed. The construction at Brandvlei would continue.

Mr Horn referred to the DCS’s response on the IIMS, and asked how it could proceed without specialists. He suggested that the Committee needed to start thinking about continuing to appropriate money for the project if the correct specialist for the technological development was not employed.

A representative of the DCS replied that the objective of the IIMS was to have a centralised system that was in place at all facilities, because when inmates were being processed there would be coherent data at all its facilities. The current system was decentralised, and lacked a lot of rules. For example, it was not mandatory to include certain data of offenders in the whole system. The IIMS had been successful in ensuring that the DCS had the correct data from the justice system on the sites where it was implemented. The IIMS was not a waste of resources, because it was working, but it needed to be enhanced. The outstanding modules must be developed. The DCS had not received additional funding and it was not feasible to develop the outstanding modules without the specialists. The DCS currently had four officials that needed to develop, maintain and support its existing systems. This was why the specialists were needed for the technical aspects of the support, but to also develop, maintain and provide support on the outstanding modules. The plan was to start with community corrections (CC), because the officials were always on the road. The CC officials required the national framework (NF) when conducting monitoring work, so that they had the necessary data and could send it to the offices. The DCS would partner with the Integrated Justice System (IJS) or the Council for Scientific and Industrial Research (CSIR) to assist the CC officials to maintain support of the IIMS.

Mr Horn asked what the outstanding modules for the IIMS were, and if this had been part of the Auditor General’s (AG's) findings. Every year the AG indicates that there is a lack of management of inmates and reporting of the lock-up numbers on a daily basis.

The DCS replied that the outstanding modules were in corrections, incarcerations, health and pharmacy.

The audit outcomes had been with regard to the bed spaces in facilities. An internal solution had been developed, using internal resources. The DCS could address some of the audit findings, but had to depend on SETA for the IT procurement solutions. There had been delays by SETA in the procurement of IT solutions.

The Chairperson asked the DCS if there had been an improvement in the implementation of action plans following the audit outcomes.

Mr Ligege replied that the DCS had received two audit qualifications in the previous financial year. The first was on the programme performance information for bed spaces, and the Department had worked on implementing this target. The second was irregular expenditure. Due to a lack of capacity, the DCS had relied on external consultants to assist it. The DCS was waiting on a response from the AG, but there was an indication that there had been an improvement.

DCS on litigation costs as of 30 June

Motion applications

A representative of the DCS said that from March 2018, Legal Services had received 569 motion applications from offenders sentenced to life (lifers) who wanted to be considered for placement on parole In terms of sec 78(1), the Minister was the relevant authority to take a decision on the parole placement of lifers. The opposition to these motions had been consolidated, and counsel had been briefed through the State Attorney’s office to ensure a common and consistent approach. Due to the high number of motion applications received, Legal Services at head office was providing support to the legal administrative officers in the regions in opposing these motions.

The number of motions in the Eastern Cape region were Mthatha (81), Mdantsane (66), Middledrift (37), St Albans (101) and Kirkwood (6).

The numbers for the Free State and Northern Cape region were Goedemoed (55) and Kimberley (132).

For the KwaZulu-Natal region, the numbers were Pietermaritzburg (29) and Westville/Qalakabusha (62)

Challenges and solutions on litigation in DCS      

Delays were due to the consideration of offenders, lack of capacity in correctional centres, poor quality of profiles, old professional reports, cut and paste, incorrect details, and victim’s affidavits/reports not on file. Delays in releasing offenders were due to poor/lack of coordinated systems, and there was poor management and implementation of policies.

Solutions included:

• Capacitating the Case Management Committee's (CMC's) offices, and for professionals to timeously attend to offenders' profiles;
• NCCS to prioritise matters in court and/or sit more frequently;
• Filling of all vacant posts in Legal Services at head office and in the regions;
• Consolidation of similar cases for uniformity;
• A litigation strategy from the Office of the Solicitor General (in progress) to address challenges in state litigation was presented on 2 Aug 2021, and was supported; and
• Training of managers on legislation and applicable policies, as decision makers had to provide reasons for every administrative decision taken, in accordance with Section 33(2) of the Constitution.

Discussion

Mr J Selfe (DA) said that the presentation indicated that cases were opposed when they reached the courts. Was an investigation launched before Legal Services were involved? What procedure was followed before the DCS decided to defend or oppose a case? He asked for more details about the Solicitor General (SG)strategy, and the impact it would have in the long term on legal cases.

The Department said that the SG would be the best equipped to answer this question.

Regarding the procedures, the DCS initiates an investigation, and where there was existing investigation, requests information about it. The Department would determine if the cases had merit before taking the legal route. She asked that the DCS be allowed to provide a written response about the SG strategy.

Ms Newhoudt-Druchen asked why there were so many assault cases. Did the 379 cases involve officials assaulting inmates? The country was trying to decrease the amount of gender-based violence (GBV), because the number of rapes was concerning. Why had there been 259 unlawful detention cases? She asked the DCS to list the medical damages claims. She wanted to know who arbitrates and deliberates on the motions of inmates imprisoned to life. Could the SAWs handle the mediations with prisoners?

She referred to slide 11, and asked why there were so many motions for everything listed. What was the reason for the delay in deliberations? She asked if there were officials not doing administration correctly because of the number of old reports. If there was mal-administration, could a law student or SAW not to the work? She asked why there was a delay in releasing offenders, because the DCS should be skilled enough to handle the matter. She referred to slide 14, and asked if a SAW could do the work under the supervision of a social worker. She raised concerns about slide 15, and requested that both Departments involved submit written responses. She asked the DCS to provide reasoning for the items on slide 18.

A representative of the DCS replied to Ms Newhoudt-Druchen, and said that everyone had the right to challenge a decision in court. The DCS would act in the best interests of the Department. The assault cases involved a combination of officials and inmates as perpetrators. The rape cases involved parolees that raped members of the community. There were a number of rape categories, because inmates rape other inmates in the facilities.

She replied to the question about medical damage, saying that this includes emotional, psychological and physical damage. One inmate had claimed that because of inadequate medical treatment, one of the inmate’s limbs had had to be amputated, and was holding the DCS accountable.

Replying to the question about slide nine, she said it had started when an attorney in the Eastern Cape had filed a motion. This had resulted in a number of attorneys filing motions. There were four or five attorneys responsible for all the motions. She said the DCS had not considered the mediation process between inmates and officials.

Regarding slide 11, the reason the motions were in the presentation was because they were part of litigation. The motions contribute to legal costs. and it was important for the Committee to be informed about them. The "poor quality" referred to cases that had been profiled and it had been determined that because of the poor quality of the report, it could not be defended in court. The DCS would address this matter by training officials to produce quality reports.

The unlawful detention involved delays that were as a result of appeals by inmates being successful, but the judgment not reaching the DCS on time. This would cause a delay in the release, which would lead to a claim for unlawful detention.

She replied to the question about slide 18 by referring to slide 19, and said the DCS had been engaging with the state attorney's office (SAO) to develop an integrated system, because the SAO received the invoices and paid the DCS for reinvestment. The reason why the DCS had returned the invoices was because during the reinvestment process, it had been established that the documents would enable the determination of a correct claim. She drew on an example when the DCS received a lot of invoices with legal costs and if there was no court order stating the DCS was liable, then it would return the invoices.

Mr Thobakgale added to the responses by the DCS that it keeps files of statistics in its systems. As at 17 August, the DCS had 2 673 profile reports of inmates with life sentences that had been submitted to the National Council for Correctional Services (NCCS). Before the files were submitted, the DCS ensured their quality through its pre-release and resettlement directorate. This ensured that all the required files were attached before they reached the NCCS. The delays occurred when the documents were of poor quality and did not have the required attachments. This was working, because no files had been sent back to the DCS, although there had been some delays before the quality assurance system was put in place.

Inmates file complaints to the Head of Corrections (HOC). Some HOCs were chairpersons of case management committees, and this was where an HOC would provide details on cases. Some inmates send enquiries to the DCS and it responds to them, while other inmates take the legal route. In these cases, the DCS works together with Legal Services. On a monthly basis, officials provide a report on their case backlogs. Although they provide offenders with progress on the cases, inmates would decide to continue to pursue it legally.

The DCS had started an assessment process of the administrative capacity of the NCCS, and had submitted the assessment to the office of the National Commissioner and HR. This assessment would indicate how the DCS could assist the NCCS with its administrative duties.

Mr Horn referred to slide 13, which indicated that the majority of cases against the DCS must be baseless, but slide 13 would indicate this was not the case. The delays in cases would indicate the lack of the DCS to follow the legal procedure, and how inmates were still in incarceration. He asked about the success rate of cases against the DCS by the offenders. How many of the cases contributed to cost orders in the financial year amid the litigation processes against the DCS? The cases indicate that the DCS was not managing its affairs, and if it could not reply, he suggested that it provide a written response. 

He referred to slide 9, and raised concerns about the number of motions, because the best defence against them would be to have the correct profile of the inmates imprisoned to life. This was how the DCS could protect itself, but it had been determined that the profile would not be accepted by the courts. He requested that the DCS provide a breakdown of the 569 motions and when it had realised the profile was not correct. The DCS could not claim that it had handled the profile correctly if it realised at the litigation stage that the profile was not correct. This would indicate that the parole-board system was insufficient.

A representative of the DCS indicated that the Department would provide a written response about the success rate.

She replied to Mr Horn’s question about slide nine, and said it was important to note when the parole process begins. The parole process begins when the inmate was in the system and the sentencing plan starts. The process would end in a profile, and there were a number of parolee categories. There were motions that were due but not considered, and there were motions being considered. It was not because the profile was of poor quality. After the profile was established, it was brought to management’s attention, and training was continuing so that profiles were improved and motions could be opposed. 

Mr Arthur Fraser, National Commissioner: DCS, replied to the issues of escapees and security, and said that the pandemic had caused the spike in escapes. The DCS had developed a strategy to address this issue.

Regarding the IT modernisation, the DCS had developed a master plan. The Committee would note that when the IT plan was discussed, it was interrelated with the IIMS. The master plan would be a roadmap for ten years with IT, and the IIMS was a priority.

He replied to the questions about slide 13, and said that the Department was aware of the challenges with its case management. A workshop had been conducted, and a plan was developed to address the issue. The DCS had an agreement with the SAPS to assist with offender’s profiles. The SAPS would provide SAP 62 and SAP 69 forms. The forms consisted of the information of the crimes that the offender had committed and the previous crimes the offender had committed. This was critical to develop a sentence plan. The SAPS had been notified that from 1 November, the DCS would not accept an offender without the forms.

The Department had improved its standard operating procedures (SOPs) to ensure that officials comply. It had developed a handbook for heads of centres and area commissioners. This was to ensure that procedures were adhered to at the regional level. The regional commissioner was in the process of implementing this. In matters of non-compliance, officials and supervisors would be held accountable. The DCS was facing legacy issues, but would address them to ensure that the Department was protected from litigation.

He thanked the Committee for its advice, and said that the DCS would build on it.

Nkosi Phathekile Holomisa, Deputy Minister: DCS, added to the National Commissioner’s comment that the Department was moving forward regarding its legacy issues. The Committee never feared to hold the DCS accountable for issues it faces. The DCS was ensuring that consequence management occurred when issues arise. He had notified the Department that if it loses a case in court due to an official’s negligence, something must be done. However there were cases that had valid reasons for why incidents occur. The ministry was concerned about the high number of cases the Department was involved in. As noted earlier, every citizen -- even inmates -- had the right to settle a matter in court.

He said it was very concerning that the employment equity (EE) target had not been achieved. The EE law required that persons with disabilities be employed and when this did not happen, the ministry starts to worry.

The Department appreciated the advice of the Committee, because it would help the DCS to improve.

Closure

The Chairperson thanked the Department for its responses, and expected written responses on the litigation issues. There were external issues that the DCS cannot control. He added to Mr Horn’s comments regarding slide 13, and said that the DCS must control these factors. If the situation continued, the Department would carry on incurring high litigation costs. The reasons for the delay in reinvesting Department of Justice (DOJ) invoices were basic matters that the DCS should be able to do.

He expected the written responses from the Department in ten days.

The meeting was adjourned.