Remand Detention: Programmes for Remand Detainee Children; Reduce Remand detainees with Bail of less than R1000; Parole System: DCS briefing

Meeting report

Ms J Mofokeng (ANC) acted as interim Chairperson. She made apologies for the Chairperson, Mr Q Dyantyi (ANC) and Mr X Nqola (ANC), who were late.

Mr J Selfe (DA) asked about the request made at a previous time to Judge Edwin Cameron, the Inspecting Judge for Correctional Services, to investigate the practice at the Kgosi Mampuru prison in Tshwane. The Department of Correctional Services (DCS) investigated and asked the Committee to take a resolution that Mr Arthur Fraser, National Commissioner of Correctional Services (NC), make the report available.

The NC asked Mr Selfe which report he was referring to.

Mr Selfe said the report about the alleged collusion between inmates, called “blue-toothing”, where inmates inject each other with their blood to get high from drug usage.

The NC agreed to locate the report and provide feedback.

Ms Mofokeng suggested the NC communicate with his office in the meantime to arrange for the Report’s release. She reminded Members about the Joint Parliamentary sitting which the Committee which Members must join at 10:00.

Presentation: Remand Detainees with Bail of Less than R1 000
Ms Vuyi Mlomo-Ndlovu, Deputy Commissioner (DC): Remand Detainees (RD) Operations Management, said the position of RD’s within DCS fell within the category of ‘Unsentenced’. RD’s made up one third of the inmate population and were detained in 125 facilities. According to the Warrant of Detention (J7), the bail categories as received from the Courts, included:

1) no bail application made

2) bail approved

3) bail application in process

4) bail considered and denied.

A huge population made up the last category. The Department discovered a further category of RD’s, who did not want bail considered, and added it on 7 February 2020. An overview of RD’s over the period March 2017 to December 2019 reflects an upward trend in numbers. The regional distribution of RD’s revealed a pairing of provinces, according to ranking between the highest and lowest number of RD’s per region.
The Western Cape and Gauteng shifted between numbers one and two, with the highest numbers per region.

The overview also reflected an increasing trend in all the regions, every year in January, since 2018. The DC said the January 2018 (46 938) to January 2020 (52 892) figures are still less than the historically highest population of 55 000.

The legal and policy framework for detainees with option of bail, gave DCS the power to approach the Court on the basis of Section 63A of the Criminal Procedure Act (CPA), to ask for amendment of bail for certain categories of RD’s. The Head of the Centre can only use this Section if the prison population poses a material and imminent threat to the human dignity, physical health or safety of an accused.

This applies to RD’s who are charged with Schedule 7 crimes and who appeared before lower courts (magistrate and regional courts).

DCS developed a bail protocol outlining the procedure, from admission to identifying the RD, and doing follow up to know the court’s decision. Section 63(1) says only the Prosecutor or the Accused can apply for amendment of bail conditions. DCS used this provision but is dependent on the permission of the RD to apply for bail review.

For the protection of the RD, DCS checks if the RD is satisfied with the person who wants to pay the bail, when arrangements for bail payments are made. Sometimes, the person offering to pay bail was the co-accused which might not be safe for the RD. A snapshot of the bail categories according to amount, showed a total of 7 289 RD’s with some RD’s with more than one case.

The highest bail amount was R300 000. Bail payments less than R1 000 total almost 76%. 44% of this was less than R500 and 30% less than R1000. Less than 20% of the RD’s detained get bail. Some are not considered for bail review if the charges fall beyond the Schedule 7 crimes.

The success rate of bail review applications submitted to the courts is very low. DCS has limited strategies it utilises. The Department is working on an assignment initiated by Minister Masutha, (the previous Minister), to investigate challenges of RD’s unable to pay bail. The task team established has identified three factors playing a role in detention of RD’s with an option of bail namely:

• affordability (90%),
• unemployment (64%),
• lack of family support (87%).

The sample of 341 RD’s with option of bail come from families where no one is employed. In some cases, only the grandmother is supporting the family. The sample was not replicated, as most RD’s have a similar background. Communities must be educated about non-custodial bail as there are options such as police bail.

Presentation: Programmes for Remand Detainee Children
The DC: RD Operations Management said RD Children made up a yearly average of less than 0.3% of RD population. The overview showed an annual average of 91 RD children in the system for 2018. The trend per region according to the 14 to 17-year age group indicated the highest number of RD children as 17 years old at end March 2018, and 2019. End March 2017, the highest age was 15 years.

According to the Child Justice Act, RD children were treated differently and appeared in court every 14 days. It was expected of DCS to remove children but the Act made it difficult.
International laws set out the services provided to RD’s such as continuing education in line with government policies, safety and security of RD’s, access to social welfare services, to state-provided health care, communication with family and friends, access to recreation and reading resources, as well as legal representation.

These are catered for in government policies. The guiding principles state RD’s are presumed innocent and can therefore not be placed in rehabilitation programmes. The challenge with RD’s, is the unstable situation allowing them to withdraw from programmes to prioritise court appearances. The biggest challenge is, some children have never been to school. The education system in DCS is different from the normal school system. More than 60% of children remain in the system for less than six months. This population continuously changes faces.

An audit targeting regions with a high number of RD children was conducted by interviewing 30 children not attending school, and revealed these statistics: KZN – Durban Youth Centre (ten children), Western Cape – Pollsmoor Female (three children) and Pollsmoor Medium A (17 children). Of 30 children interviewed, 17 (56%) were not attending school while 13 (43%) were attending school.

Reasons for not attending school included: did not want to go to school, did not know, scared of the gangs in the neighbourhood, had a calling to be a sangoma, no money for school, suspended from school for stabbing a fellow pupil, was bullied and was in an accident.

This presents a problem about which programme to put them through. Most RD children did not participate in psychological programmes. Social workers provided the first level of entry. A psychologist would be transferred to a centre if there was a need for psychological intervention. RD children preferred indoor to outdoor programmes.

The Chairperson, Mr Q Dyantyi (ANC) joined the meeting at this point.

Presentation: Parole Process in South Africa
Ms Nhlanhla Moremi, Deputy Director (DD): Parole Administration, defined parole as an internationally accepted mechanism allowing for conditional release of offenders from a correctional centre into the community before a sentence of imprisonment comes to an end. After successfully completing the rehabilitation programmes, an offender can return to normal life under the supervision of community correctional services and continue with rehabilitation programmes.

Parole is meant to:

• gradually integrate offenders into the community,
• give a second chance to become law abiding citizens,
• give offenders an opportunity to continue rehabilitation programmes in the community
• for the community to accept responsibility by assisting with social reintegration process

The Parole Board considers offenders for possible placement under correctional supervision, parole and parole medical, as well as setting placement conditions. It is also responsible for granting special remission of sentences for meritorious conduct and making recommendations to the Minister about offenders declared as dangerous criminals or sentenced for life imprisonment.

Six months before arriving at the minimum detention period, the Case Management Committee (CMC) submits a parole profile report to the Parole Board. This process is automatic, the offender does not have to apply. The basic factors considered during this process include the completion of the required minimum detention period, proof that rehabilitation occurred, proof of a support system, positive report on conduct and behaviour, risk posed to the community and acceptance of the conditions for placement by the offender. Other factors also considered include the comments made by the judge during sentencing, previous convictions, the nature of the offence, the duration of the sentence, the age of the offender, crime patterns, the result of assessments by experts and the availability and quality of the support system in the community. If the offender is found to be a suitable candidate for parole, the offender must accept the parole conditions. Victim participation was a crucial part of the process. Victims are invited to participate in the Parole Board hearings.

The Chairperson said Members had trouble following the presentation but did not blame the presenter and asked her to continue.

Ms Moremi said victim participation was mandated by law in terms of Section 299A of the CPA and Section 75(4) of the Correctional Services Act. Any person who was a victim of an offence listed in Section 299A of the CPA could participate in the parole process. This included victims of murder, rape, robbery, sexual assault and kidnapping. Victims of offences not listed in the CPA, are also allowed to make representations to the Parole Board.

There were 63 audio-visual systems in all the Parole Board’s. This was one of the mechanisms allowing victims to participate in the process. During the process, a victim impact statement is prepared which assists in setting parole conditions. It provides a platform to victims to make representations either through written submission, audio-recording, the audio-visual system, or physical attendance. There were no voting powers.

The challenge was, only a few cases registered in which victims wanted to be part of the process. Some victims changed address after a crime was perpetrated against them. This made them difficult to trace. Others refused to participate in the process because of lack of support in the immediate aftermath of the crime. Negative reporting in the media was another aspect affecting victim participation. Such cases were referred for review. Measures were put in place to ensure victim participation included the installation of audio-visual systems in all Parole Board’s, appointment of auxiliary workers to assist with tracing of victims and sharing of information about victim participation in strategic meetings.

Parole Board members participate in forums such as community policing, community empowerment programmes, imbizos and other community structures. The national number of notorious cases, including high profile cases, totalled 434. The reasons for a case to be declared notorious included; the type of crime committed, circumstances under which the crime was committed, status of the victim, political standing of the offender/victim, social standing of offender/victim, media coverage during trial proceedings and community uprising regarding the crime committed.

After his public address on 5 September 2019, the President announced those found guilty of Gender Based Violence (GBV) will not be eligible for parole. A discussion document was compiled and the Department sought legal advice from the State Law Advisors on two options;
A) possible removal of parole for GBV offences and
B) completion of the two-third minimum sentence before parole can be considered for a similar offence.

Option B was considered the most viable option to pass constitutional muster. Court judgments, which found some of the parole provisions unconstitutional, posed a challenge. A task team was set up by Minister R Lamola, after the rape and killing of Tazne van Wyk. The task team, led by Judge Desai, considered amending the minimum detention period for aggressive sexual offences.
The Chairperson asked each member to pose their questions, followed by a response from the department to avoid leaking. For the sake of time, he was not expecting anyone to make a speech.

Discussion

Mr W Horn (DA) said the focus of the presentation of the parole process was on the theory of parole. It did not inform the Committee about frustrations of the Department resulting from its own internal struggles. He questioned the following:

• the effectiveness of one social worker for 240 inmates and one community worker for 120 people on parole or under community supervision. Nowhere is a service level standard adhered to.
• why a parole profile report is prepared six months before a parole evaluation hearing while a social worker is supposed to do the evaluation from day one. What the presentation did not tell, was the struggles with rehabilitation programmes and not having enough social workers in the system.
• the dependency on other employees to assist with the rehabilitation programmes and asked whether those people were properly trained. Once people were on parole, the standard of 1:120 was not adhered to. It could be as high as 1:800.

He stated that:

• the service level standard says all parolees are high risk within the first six months. Parolees are downgraded to medium and low risk if they do not transgress. There was no way to see if parole conditions are adhered to and to evaluate the success rate of 99% of what was reported. This is why re-offending hit the media. Parolees supposed to be high risk for the rest of the parole period, were treated as if they were downgraded. He asked for an honest presentation about the real challenges facing the Department.

Ms Mofokeng worried about the limited time available for the meeting and asked all the Members to first pose all their questions and then the Department can respond.

The Chairperson said he will manage the process and asked officials from the Department to answer Mr Horn’s questions.

Ms Veliswa Mvandaba, National Deputy Commissioner: Social Integration, (DC), agreed and accepted there were not enough social workers in the system. Mr Horn was correct about the service level standards. The Department had 190 social workers and 63 employees who assisted social workers with interventions. The Department had memorandum of understandings with several non-governmental organisations (NGOs) and non-profit organisation (NPOs) assisting with reintegration programmes.

DCS also had their own spiritual organisation assisting with reintegration programmes. The Department had challenges regarding the amount of social workers compared to the amount of offenders in the system, and was working on plans to capacitate social workers.

The number of monitoring officials compared to parolees who had been visited was another challenge. A 99% success rate was based on parolees who did not violate bail conditions and 1% represented parolees who did not comply with conditions even after interventions were applied.

The capacity was not enough to effectively monitor as required. The Department had 218 community corrections offices and 958 service points to provide communities with the opportunity to contact the Department if the parolee violated the bail conditions. The Department also had good relations with the Community Policing Forums (CPFs). The Department approached the faith-based sector in different provinces for assistance. The churches in the communities were institutions assisting the Department with interventions.

Mr M Hendricks (AJA) said the Committee was in good hands during the absence of the Chairperson and raised the following issue about three elderly women who visited his Parliamentary Constituency office to talk to him:

The women’s sons were granted parole but were still in prison. Mr Hendricks consulted other Members of the Committee, and wrote to the Minister about this, but did not get a response. He wrote to Parliament and to the Inspecting Judge, and wanted to give positive feedback to the women and assure them their plight was brought to Parliament. He knew one of the prisoners well because he worked with his father. Mr Hendricks could not understand why the three were still incarcerated after qualifying for parole.

The DD asked Mr Hendricks to give her the names of the three offenders so she could clarify if the parties were considered for parole, and said if they were the process was not automatic. She undertook to investigate and provide feedback as parolees did have the right to feedback.

The NC also offered to follow up on the matter.

The DC: RD Operations Management said there was a different dispensation for Lifers (inmates serving a life sentence). The Case Management Committee, which consisted of judges, magistrates and members of the community, met once a month and made recommendations to the Minister. The Minister had the discretion to approve parole. She would check on the names and provide feedback.

Adv G Breytenbach (DA) said the meeting was much more important than the Joint Sitting and Members should stay to do the work. The reply to Mr Horn’s question raised many more questions, and she noted the following:

•  How the parties are supposed to rehabilitate offenders with a budget continuously increased but the Department does not provide social workers? (She suggested arranging a separate meeting to discuss budgeting issues.)
• How the Department wants to capacitate social workers? An explanation about the issue of the 99% and 1% mentioned. The Advocate was concerned it became a community problem and it was not the job of CPF’s or the faith-based sector to keep track of parolees. The answer was deeply unsatisfactory.
• Referring to the Head of Prisons having discretion to amend bail conditions in terms of Section 63A, she asked how many of these decisions were taken and if no decisions were taken, why this Section was not used.
• Why this Section could not be used in instances of bail less than R1000. It was counter-productive to keep someone in custody for R400 as an example.
• Why only two RD children were on the rehabilitation programmes and whether participation was voluntary.
• Why the electronic monitoring device system was not used. The system was fully vetted before the pilot programme and no errors were found.
• The mini-solar panels could test for substance and alcohol abuse. DCS lost the contract as it did not enter into the service level agreement with the service provider. The electronic tag devices cost lots of money but the extremely successful service was abandoned.

Mr Joseph Katenga, Chief Deputy Commissioner (CDC): Strategic Management, said the Department aimed to have the right skills in the right place. The operational change-over was slow with the change in regime from prisons to correctional services. There was a process to determine the ideal number of skills for rehabilitation and integration. Currently, security orientated staff were filling in for the absence of skilled staff. The DCS leveraged off other departments such as the Department of Health. The structure revision was still work-in-progress.

The DC: Social Integration said 99% represented people complying with bail conditions.

Mr Horn asked if re-offending was one of the conditions.

The DC: Social Integration, said the Department had a challenge with parolees committing crimes. An alias was often used by parolees making it difficult to keep track of them. The Department would not know if a parolee committed a crime in another province as the criminal justice system was not integrated. The Police Services was normally the source of information in such cases. The Department was aware of the gaps and was working on it.

The DC: RD Operations Management said she was not clear what Adv Breytenbach was referring to regarding the two children attending rehabilitation programmes. Section 63A considerations only applied to monetary cases and cases above R20 000 did not qualify. The Department agreed with the judiciary to allow three months for payment of bail. However, it was not predictable when RD’s would pay the bail as they entered and exited the system at a rapid pace. The statistics revealed a 55% turnover rate within a period of one day to three months. The figures were embedded in the numbers and remained high within the first three months.

The NC believed the electronic system was not as successful as reported. The contract with the service provider was under investigation by the Special Investigating Unit (SIU). Claims and counter claims were argued in a related court case. The contract seized because of the investigation. DCS was developing macro structures in terms of a Service Delivery Model, which was in the final stages of completion. The NC expressed the hope to have appropriate skills and a range of services required.

Mr Selfe said the transformation of the system was in progress for the past 15 years. The integrated justice system was a work-in-progress too. In his opinion, the same person was responsible for these delays. The system worked well in theory but not in practice. The number of professional staff appointed was not adequate for the prison population. This meant non-professional staff would do the assessments of violent and well-adapted personalities. Lay people, such as community members on the Parole Board, were making the decisions. He labelled it as amateurs relying on other amateurs deciding on the release by parole of offenders. He cited two examples of the system not working well. Firstly, the victims who were covered by Section 299A of the Criminal Procedure Act were not informed of the release on parole in the Hewitt case. The case was reviewed only after objections were raised by the victims. The second case involved the killer of Tazne van Wyk who absconded but was not re-arrested. Mr Selfe asked what the level of supervision was, particularly after a parolee was downgraded and what the case load was for an average correctional supervisor in relation to the number of people on parole that he/she had to supervise.

The DD: Parole Administration agreed the Department did not reach out to every victim as the criminal justice system was not integrated. The Department sometimes experienced difficulty tracing victims if the persons were not registered on the system. DCS was planning to improve on this issue.

The Chairperson asked when it will be integrated as it always seemed to be work-in-progress.

The CDC: Strategic Management said Minister Lamola registered the concern about the slow integration of the criminal justice system. Together with the integrated criminal justice strategy, the progress was slow.  Two bodies came under scrutiny but would see better traction in the current financial year.

The Chairperson asked if the Department planned for the traction or was hoping for it.

The CDC: Strategic Management said it was planned for and that structures were in place for it to happen.

An official from the DCS said that the ratio of parolees versus probation officers was 1:40. Consideration must be given to geographical distribution of areas per monitoring official.

The NC Commission said the Minister indicated the parole system was under review to make it more victim-centred and to remove the focus from the perpetrator. As part of this process, DCS was doing a pilot in the Western Cape involving six offenders qualifying for parole within six to twelve months. DCS shared the detail with the police to allow obtaining the docket information and the victim statement. This will assist with the application to the Parole Board so it did not have to rely on superficial information from the police.

Adv H Mohamed (ANC) referred to the Tazne van Wyk case and asked if a protocol or directive was issued to follow up with the police if parolees absconded, if the pilot was instructive or operational. Being involved in the system, he with others, advocated for a five-yearly review of the Section 63A provision and for Heads of Prisons to be trained.

He asked if the following information could be made available to the Committee: 1) the number of Section 63A cases considered, 2) the number of victims and offenders who participated in the process and 3) the number of medical parole applications approved, rejected or cases of offenders passed on before the review was completed.

The DC: RD Operations Management said the reasons why bail did not get paid were under review. The court relied on the DCS official to specify which option to choose for the RD. This was deemed to be unsafe. The court had all the information and should make the decision. DCS unpacked the bail conditions and shared the information with all departments within the cluster. The concern about the poor success rate in bail review applications was raised with the magistrates.

An official from the DCS explained that a G30 warrant could be issued and a case registered with the police, when an offender absconded.

The NC said a directive was issued in this case, which stipulated a case must be reported to Head Office within 24 hours to enable the Department to interface with the police. He was not sure why this was not communicated to all officials.

The Chairperson asked the NC to sort out the in-house communication issues.

Ms W Newhoudt-Druchen (ANC) asked why not all parolees were registered on the system considering the system did not reflect the status of the parolee who absconded. She spoke of news reports about the Parole Board being incompetent and asked if the DCS representative served on the Parole Board as a secretary or to advise, and if community members from NGO’s or just any member from the community were part of the Parole Board. To assist in tracing victims, she suggested members from an organisation working with victims needs to be on the Board. This will act as an early warning system. 56% of RD children did not attend school and she asked what the reasons were for not attending school. A psychological assessment might reveal the children had learning disabilities. She asked if the 30 children interviewed to determine their educational levels and reasons for not attending school, were older than 14 years, and if the Department had enough educators in the system.

The DD: Parole Administration said the Parole Board used to be dominated by DCS members. It was criticised for this. It was revised to include more community members. The permanent DCS member also participated in the decision-making process and advised the Parole Board. Community members should have experience in community development programmes. It was not always practical for the community to know the Parole Board members. In Kroonstad, for example, 14 centres were served by one Parole Board. The members may not be known to all the communities in that area.

The DC: Social Integration said that the Department used to depend on NGOs to assist with tracing victims but some NGOs no longer had the budget to do so. The situation improved with the help of social workers and the police. The challenge was, some victims did not want to participate in the process because they did not want to be reminded if the case was old. Some victims requested counselling before facing their perpetrators.

Ms Mofokeng said the more the Department explained about the Parole Board, the more concerned she became. Concerning that the quorum for a meeting was three members, the announcement by the Minister about the review of the parole system was important.  The qualifications of the Parole Board members were questionable. She asked if there was collaboration between the DCS and the Department of Social Development. A lot of social workers are unemployed. The Commission must delve deeper into the R400 and R1000 bail issue as it did not make sense. She also asked why political and social standings as well as media coverage was considered as possible reasons for declaring an offender as notorious. The statistics revealed, from the national figure of 434 cases, the highest number of notorious cases were reported in Gauteng (250) and the Western Cape (165). This had to be investigated and the Committee should visit these centres. The Department was doing nothing about victim participation. She contacted the Minister about the Hewitt case because the victim contacted her. People with money and political connection always get out. If the Department had a system, the daughter of the Van Wyk’s would not have died.

There was a case of a parolee who killed 16 women and said that the Department was supposed to learn from these cases. A lot of things were not right and the challenges such as the shortage of social workers and psychologists were disturbing. The Department was not talking about internal matters such as the lack of dedicated personnel to monitor parolees. The reason was because they were killed. The Department had to list it as a challenge and could not rely on NGO’s and churches to assist with family reintegration.

The DD: Parole Administration explained that the Constitutional Court judgment in the Phaahla matter ordered that the legislation be amended to apply parole regimes based on date of commission of an offence. The minimum period now depended on the date of the offence and not the date of the sentence.

The DC: RD Operations Management said the legislative framework was challenged by offenders and some Constitutional Court rulings benefit offenders. In case law, a person could not be given a sentence without Life. A determinate sentence was subsumed by the Life sentence. Life allowed for serving a minimum sentence, meaning, an offender was entitled to be placed on parole. DCS was blamed for implementing the law.

An official from the DCS said the requirements for Parole Board members were not as stringent before as it was now. It was stressful to get experienced people with proper qualifications, such as retired judges, to join the Parole Board. The Act determined the quorum of a minimum of three people, this included a Chairperson or a Vice Chairperson.

The Chairperson asked if the Chairperson and the Vice Chairperson were both from the community.

The DC: Social Integration said the term ‘members of the community’ must be rephrased to civil society.

The National Commissioner said that the session was useful and allowed the Department to consider issues discussed. The Department will return to report on progress made. The Minister will get feedback within the next three weeks about the process of the review of the parole system. A symposium, led by Judge Siraj Desai, will fast track the changes. The team worked vigorously to respond to the mandate of the DCS.

The Chairperson said he was happy the Commissioner made the point about returning to provide feedback. However, the problems are systemic in nature. The Committee will summarise the issues discussed in terms of a clear road map with timelines. According to the Commissioner, the Minister will be given feedback within three weeks, the Commission will give the Department five weeks to return with feedback.

Satisfactory answers are expected because the Committee cannot rely on hope for things to happen. Feedback on recruitment plans are also expected. It is important to have a second interaction on specific issues. On the 21st of February, the Department was informed about the 22 key issues identified by the Committee. If the Department had complaints about the law, the Committee must be informed about bottle necks in the law. Judicial Inspectorate for Correctional Services (JICS) was informed to return and develop a programme for reviewing the Correctional Services Act (CSA). He requested the Department not to speak in general terms but to provide exact areas that need to be fixed. The Committee might bring forward some of the important issues that could unlock other issues. The Department had a menu of what must be done and the Committee would work together with the Department to exhaust issues. He apologised for not exhausting the issues at this meeting (due to the Parliamentary Joint Sitting) and wanted to move away from the work-in-progress language. The Department must provide specific timelines and inform the Committee in advance if the timelines are not going to be met. The Chairperson said he did not want to be unable to leave a good legacy after five years and apologised for arriving late to the meeting.

Mr Selfe asked if the NC could provide him with feedback about his request for a report to be made available.

The NC answered, he received the report but was unable to open it as it was classified. He would open it back at the office and share it with the Committee.

The meeting was adjourned.