Processes following recent unrest and violence, with Minister & Deputy Ministers

Meeting report

The Chairperson welcomed everyone to the meeting. He asked everyone to observe a moment of silence for two Members and all those who had passed away due to Covid-19 as well as the recent violence. He said that the meeting was called to take stock of what had happened in the last week and the plans the Department of Justice and Constitutional Development (DOJCD), the National Prosecuting Authority (NPA), and the Department of Correctional Services (DCS) to deal with the aftermath of the unrest and violence. He thanked Mr Ronald Lamola, Minister of Justice and Correctional Services, for being present to brief the Committee.

Minister’s briefing

Minister Lamola said that the recent eruption of violence and looting was an unprecedented assault on the constitutional democracy, social contracts, and the rule of law. He said that many citizens stood firm and showed the country’s unwavering commitment to the rule of law. Quoting an old English court judgment, he emphasised that everyone is equal before the law and has the right to equal protection and benefit of the law.

The unrest and violence that erupted was the result of a multitude of issues, and had caused various disruptions and problems with dire consequences for many. Some of the violent actions could well have fallen into the ambit of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004.

He said that law enforcement agencies had to investigate all of those people who violated the spirit of the Constitution and the relevant integral legislation. He had witnessed very disturbing scenes, and it was clear that old scars of the nation had been reopened, with racial tensions boiling over. Now more than ever, the country and its people must show that it is united, and must show uBuntu. Many had begun to show these values, in their rebuilding and protective efforts. Heroes and heroines are not those who destroy, but those who build. It had to be ensured that the criminal justice system remained fair.

Directions had been issued to manage case backlogs, by means of utilising a priority case roll for matters such as gender-based violence and femicide, sexual offences, corruption cases, etc. the directions provided opportunities to implement special measures to address the immense case backlog occasioned by the hard lockdown, and alternative dispute resolutions mechanisms. In this regard, the NPA may, where an accused was charged with a lesser offence, in respect of which an admission of guilt fee was permissible and justified, fix an admission of guilt fee for the relevant accused. The NPA will assess these independently, on a case-by-case basis. This mechanism will allow for diversion opportunities for children, and facilitate the involvement of other community structures to pursue restorative justice, and will create the tool for non-custodial sentences to minimis overcrowding in prisons.

The operational model had been reworked, with an integrated task team being established to work on the recent unrest and the managing of relevant cases. This team comprised of the NPA, Legal Aid South Africa, the DCS, and the South African Police Service (SAPS). Its mandate was to obtain statistics from KwaZulu-Natal and Gauteng, attend to blockages across the criminal justice system, escalate certain matters for decision where necessary, facilitate resource allocation when necessary, adopt a project management approach to resolve operational challenges, consider and address concerns raised by the various role-players in the justice system.

The NPA had also considered the operational impact of the recent unrest in light of current challenges, such as limited staff for Covid-19 reasons, transport problems occasioned by the unrest, overcrowding in police and correctional facilities. Hence, the operational plan will require expedited processing of detainees, and will address collaboration throughout the criminal justice system.

Emerging cases would be divided into four categories, namely: actual looters and persons stealing from shopping outlets; persons found in possession of stolen properties; groups and individuals stealing property in big quantities, organised or planned action; and enticement or inciting public violence. Experienced prosecutors would be assigned from Organised Crime and the Priority Crime Litigation Unit( PCLU) to deal with more serious matters.

In terms of NPA policy, where persons were found guilty of being in possession of stolen property or of participating in the looting, restorative justice or alternative measures such as admission of guilt fees, diversion, and plea agreements, may be utilised instead of custodial sentences. The remand detention system of the DCS, that was already over-budget, had to be reconfigured. There had been a large influx of remand detainees in Gauteng and KwaZulu-Natal. As of 20 July, a total of 1 498 remand detainees had been admitted to correctional facilities. The facilities were stretched, and challenges were exacerbated by Covid-10. However, DCS was mitigating against these challenges, with facilities in KwaZulu-Natal and Gauteng continuing to admit new remand detainees. New detainees were isolated for Covid-19 screening and observation before interaction with the general inmate population.

He assured the Committee that no one involved in the recent violence and unrest would evade justice, with all matters to be expedited. Justice would be done, and the rule of law would reign supreme.

(See Minister’s speech)

Department of Justice and Constitutional Development (DOJCD) presentation

Adv Doctor Mashabane, Director-General (DG), DOJCD, asked Adv JB Skosana, Deputy Director-General (DDG): Court Services, DOJCD, to take the Committee through the presentation.

Overview of Directions

Adv Skosana stated that in addition to the ordinary court rolls, there will be a priority roll, and further, to deal with the recent unrest, a separate roll. This separate roll will result in the cases on that specialised roll continuing without any postponements and being dealt with by special dedicated courts. This will ensure that the unrest-related cases were dealt with speedily.

The directions dealt with the management of case backlogs. Hence, the DOJCD will prioritise what it had in terms of the base budget and additionally draw funding from earmarked funds for criminal justice interventions, and the approved allocation from the Criminal Assets Recovery Account (CARA). Further, salaries for additional retired magistrates and prosecutors, who will be brought on to assist with cases on the separate roll where necessary, will be drawn from statutory allocation from National Revenue Funds. The effect of these and other measures contained in the Directions will allow for increased capacity to deal with the influx of cases.

The special measures envisaged by the Directions enable cases to be transferred to other magisterial districts from the ones where the offence was alleged to have been committed where necessary for safety and practical reasons. The national task team was meeting daily to ensure that the challenges were constantly overcome, reports were obtained from the provincial teams, and escalated matters to the Minister or to Cabinet where necessary. There will be a regular interrogation of the statistics coming from the courts to evaluate the extent to which these special measures were alleviating the pressures of dealing with the influx of cases and how the cases were being addressed. The task team will feed into the Justice, Crime Prevention and Security (JCPS) Cluster, which will feed into Cabinet, as well as the Court Optimisation Committee established by the Minister. Hence, the task team will not work in isolation.

(See presentation for more detailed information)

National Prosecuting Authority (NPA) presentation

Adv Shamila Batohi, National Director of Public Prosecutions (NDPP), NPA, took the Committee through the NPA presentation. She stated that challenges of the past, in addition to the recent unrest, had exposed various weaknesses in the criminal justice system as well as strengthened the resolve to keep fighting and rebuild the country. She emphasised the importance of having a truly independent NPA. The NPA was very clear about its mandate, and took instructions from no one. It was clear that those responsible for the recent unrest had to be held accountable.

In collaboration with the SAPS, three categories of perpetrators were identified. Category three was the low-level perpetrators. Category two was the mid-level perpetrators, namely the organised looters. Category one was the high-level perpetrators, namely the instigators or planners. The NPA was working very closely with the SAPS to ensure a clear and different approach was taken to each category of perpetrator. For category three perpetrators, the NPA was empathetic to their situations of poverty and thus, on a case-by-case basis, where it was deemed to be justified, the NPA would consider dealing with them in terms of restorative justice policies. However, in terms of category two and one perpetrators, the NPA and SAPS had to be relentless in ensuring that their coordination was clear in order to hold those most responsible for the unrest accountable.

The NPA would follow the evidence and nothing else, and the NPA would serve the people of South Africa, and no one else. Everything that was possible had to be done to ensure accountability and justice.

Unrest-related incidents

Adv Rodney de Kock, Deputy National Director of Public Prosecutions (DNDPP), NPA, said that the NPA and SAPS had been hard at work to ensure that there was proper collaboration and an effective response to the unrest and violence. He said that the NPA had convened special executive committees under the NDPP and had communicated with all Provincial Directors of Public Prosecutions and the relevant prosecutors at the forefront to ensure effective management of the situation. Prosecutors reported daily to the executive committee on matters referred to them for decisions and matters to be placed on the court rolls.

According to the most accurate data at the NPA’s disposal: during the week of 7 to 11 July, 170 new cases involving 190 accused were enrolled at the courts; during the week of 12 to 16 July, 618 new cases involving 1249 accused were enrolled at the courts: and since 19 July, 18 new cases involving 90 accused were enrolled at the courts.

SAPS had initially had some challenges with respect to the large number of accused, but that had since decreased. Many of the alleged perpetrators, such as those who did not receive bail or were still undergoing bail applications, were in custody at DCS facilities. Where appropriate, certain people had been released on warnings. Hence, to a large extent situation is under control in terms of the management of persons through the justice system chain, to DCS. In spite of overcrowding issues, DCS was managing the situation to its best ability.

Operational impact

By all accounts KwaZulu-Natal had been the worst affected, with the North West, Northern Cape, and Free State experiencing only a few cases. In all of the other provinces, there were no significant unrest-related matters that were reported.

In terms of the Covid-19 impact on the NPA, there were currently 123 infected NPA officials. This impacted on the functioning of the prosecution and the various courts due to the isolation protocol. A large number of accused in some cases were brought to court, and it was initially identified that of the statements prepared by the SAPS were incomplete, which resulted in those matters not being enrolled. This was in the process of being resolved, with there being constant communication regarding the requirements for a proper docket and to sustain certain charges against each individual accused.

Bail application policy was being looked at, with the NPA wanting to make absolutely certain that an accused released on bail had no capacity to reoffend. Hence, where the NPA was alerted to evidence suggesting that any alleged perpetrator has the tendency to reoffend, the state would oppose bail.

Operational action

The Constitution and the rule of law were paramount. Thus, those values and principles were not jettisoned when the NPA was under pressure to prosecute cases. Each case would be considered according to the normal principles and guidelines.  Policies of mediation and restorative justice will apply in appropriate cases, as the law had to be applied equally. As postponements arise, accused persons in prison will be remanded with audio visual systems. One of the NPA’s priority areas was to work with the DOJCD to ensure that those systems were operating effectively between the prisons and the courts.

In terms of the second category of cases, namely, persons found in possession of stolen properties, prosecutors would work to make sure that those who were unable to validly explain possession of property had to deal with the consequences thereof. In this regard, prosecutors may also adopt a mediation or restorative justice approach.

All accused persons will receive legal representation. The rights of everyone will be protected. Mediation and restorative justice would be done in a controlled situation, where trained prosecutors were engaging with legal advisors or representative of the accused person.

The NPA dealt more seriously with those groups or individuals who stole property in big quantities, or took organised or planned action, as these people were criminals by nature. These matters were overseen by the senior prosecutors of each provincial office. This case category was clearly organised crime and was thus dealt with as such. Where it was found that syndicates were involved, they will be charged with racketeering, which can yield a life sentence.

Experienced prosecutors from the Organised Crime Unit were assigned to category four cases, as with category three cases. The one exception was that this type of case, involving people who allegedly enticed or incited public violence, fell within the mandate of the PCLU. Where there was evidence justifying prosecution of offences which may fall within the ambit of Act 33 of 2004, the state will not hesitate to prosecute.

Coordination structures

The Joint Operational Committee (JOCOM) met daily to understand where and how cases may take place. A National Daily Coordination body had been established to obtain an overview of the cases to plan individual responses to each matter. In terms of national coordination, there was the NAT JOINTS, and for provincial coordination, there was the PROV JOINTS. A report was received from the Director of Public Prosecutions in KwaZulu-Natal stating that due to Covid-19 and the disruptions there, the operations of the PROV JOINT was interrupted, but they were now operating using technology. There was direct contact between the Detective Branch Commanders, Station Commanders of the SAPS, and senior public prosecutors responsible for the prosecution of cases at each local court for category one and two cases.

Current cases and the Covid-19 impact

There had been much fewer cases since 19 July, with there being only 50 new cases at the Durban Magistrates Court, which was much less than the normal 200 cases every Monday. Additional resources were not required at this stage for prosecutions.

The NPA had 105 infected prosecutors in June, which increased to 123 in July. Unfortunately, one prosecutor passed away in July from Covid-19.

(See presentation for more detailed information)

Discussion

Mr W Horn (DA) asked how many dockets, with regards to the 3 400 arrests made, were brought to the NPA by the SAPS and how many of those dockets had led to the enrolment of cases against the number referred back for investigation. He asked what the current experience of the NPA was with respect to complex investigations that had to unfold to identify the masterminds behind the recent violence. Did the NPA, after the Cybercrimes Act 19 of 2020 became law and in the run up to it becoming law, capacitate prosecutors at the PCLU to guide investigations based on the technical nature of that Act? Was the NPA satisfied that the SAPS did the necessary to build up that same capacity?

Adv S Swart (ACDP) was encouraged by the firm stance taken by the NPA. He was concerned about the capacity of the investigations. He suggested that the Committee have a meeting with the Portfolio Committee on Police, as the NPA was reliant on the dockets. He asked the NPA if it was satisfied with the capacity of the SAPS and the Hawks to provide sufficient evidence and conduct proper investigations to ensure that serious matters were quickly prosecuted. With the various threats made against the judiciary, which must be taken seriously, to what degree were steps taken to protect the judiciary, the courts, and the judges involved? Would additional courts sit additional hours or would retired judges be brought in to deal with the large influx of serious cases?

Dr W Newhoudt-Druchen (ANC) asked who was monitoring social media, with regard to those people inciting the violence through virtual means. How were both types of culprits, namely the hidden instigators and the actual looters, dealt with? What assistance would be provided in terms of Legal Aid to those who required it? She was concerned about the spread of Covid-19 amongst the judiciary and the justice system. Are prosecutors and judges getting vaccinated? Due to the new remand detainees, Covid-19 could spread further in the SAPS and DCS facilities, so would there be more virtual cases to expedite matters, or would that not be possible? Was any damage done to court property in the past two weeks, particularly in KwaZulu-Natal and Gauteng?

Mr J Selfe (DA) asked if any lessons could be learned from this crisis to resolve the backlogs and reduce the number of people in awaiting-trial facilities in the future. Would any action be taken against people who were acting legitimately to save their own lives and property, as he had heard that the SAPS, and to an extent the South African National Defence Force (SANDF), was unable to assist those communities during the crisis? It was evident from the footage seen, that there was mass defiance of Covid-19 regulations, so would that be given any attention by the NPA, or would that be regarded as merely inevitable under circumstances?

Ms N Maseko-Jele (ANC) said that the recent unrest had exposed weakness and ticking time bombs in South African society. She said that the sectoral members of the specific communities who were being met with had requested if the Minister could visit them and engage with their concerns. For Adv de Kock, particularly in relation to the SAPS, the stakeholders in the communities had requested that the Minister must stop the SAPS from going house to house taking food, as that was causing problems, with certain people being perceived as pointing fingers and as a consequence being retaliated against. This had resulted in new cases of community killings.

She asked the NPA how many of the perpetrators were not South African. Could the Members be given that statistic? There was an outcry regarding those who were killed, with it believed that most of them were not involved in looting or any other crime, and that their killing was merely racially motivated. Why were they killed, as there was a report that there was no looting in that area? Could the NPA give the Members a briefing on that, as well as a report if there were any arrests for that matter? If not, why? Was there NPA investigation ongoing?

The Chairperson asked if that question could rather be processed through the Portfolio Committee on Police rather.

Ms Maseko-Jele said that she thought there would be a joint meeting with the Portfolio Committee on Police, but if that was not the case then she could find a way to ask that question directly.

Ms Y Yako (EFF) appreciated the fact that gender-based violence had been prioritised in South Africa. She said that in Cape Town, there were incredible abuses on the rights of people and taxi violence. She asked if the DOJCD had engaged with the SAPS in Cape Town in this regard. What steps were being taken to intervene right now in that unrest? She appealed to the DOJCD to approach the SAPS to see what measures were in place, and to ignite a reaction by the SAPS to intervene. If regional structures were being established in other areas, could one be established in Cape Town to deal with the taxi violence to hold those responsible accountable?

Adv G Breytenbach (DA) noted an acute possibility that some members of the KwaZulu-Natal SAPS were complicit in the unrest there and for that reason there should be concerns about the SAPS investigating itself. She asked if the NPA had considered this. Had this occurred anywhere else? Had thought been given to the SAPS from other provinces investigating the issues in KwaZulu-Natal?

The Chairperson suggested that the Minister take the issues raised by Ms Maseko-Jele and Ms Breytenbach to the JCPS Cluster for consideration and response.

Responses

Adv Mashabane noted a confirmation from the NAT JOINTS that the judges who were at high risk with regards to threats to security and safety were given the necessary protection. The DOJCD utilised private security, which was on high alert and there were regular meetings to check the status of the security and their deployment. The NAT JOINTS had identified the property that were at high risk, but there had not been any report of any building damage or destruction during the unrest.

On the vaccinations of the judiciary, the Department of Health (DOH) had made an arrangement that members of the justice system, namely court officials, judges, magistrates, and the NPA, were classified as providing social services. Hence, from Monday, those people could go to any available vaccination site. Due to the working rotations, court officials will go and get vaccinated when off duty.

Adv Skosana noted that the electrical cables of the Alexandria Court had been cut, the perimeter fence was brought down, and motor gate damaged, but there was no damage directly to court building. On the backlogs, through the integrated approach, there were measures in place to ensure that capacity was drawn in from retired judges and the establishment of additional court sites. The Directions provided for those measures which were being coordinated. Legal Aid South Africa was part of the task team, and as such legal assistance would be available to those who required it.

On the issue of additional courts and longer hours, Mr John Jeffery, Deputy Minister of Justice, said that the problem was that the courts were not sitting anywhere near the four and a half hour period set by the Chief Justice. That benchmark had to be met before additional courts and longer hours were resorted to.

On the number of arrests made and dockets referred to prosecutors, Adv de Kock, said that a gap was currently identified between the number of arrests and dockets received. It had to be noted that one docket may contain more than one accused; hence it was a difficult equation to solve without assessing each individual docket in detail. Hence, the NPA did not currently have that information, but it had flagged that issue to its workstreams and had asked to get synergy between those numbers. He said the NPA would do its best to get that answer and provide it in writing to the Committee.

On social media and the Cybercrimes Act, it was implemented only for certain provisions. The NPA was developing a training programmes for prosecutors and investigators, to take place between the NPA and the SAPS. The regulations still had to be promulgated and some provisions had to come into force, but the NPA was well in advance with regard to training.

On the capacity of the Directorate for Priority Crime Investigation (DPCI) and the SAPS to do work, the NPA had not been alerted to any particular resource constraints. There was sufficient capacity particularly within the DPCI to investigate category one and two cases. Prosecutors had been assigned by the PCLU to assist the investigators in resolving those matters. The NPA was meeting daily with the DPCI to obtain progress reports on these matters.

On individuals hiding behind screens and instigating the unrest, the intelligence agencies had the mandate to monitor and investigate, and there were legal provisions to be complied with. The prosecution did not have some of those powers, which were within the mandate of the SAPS. This was not an open ended affair, and the monitoring and investigations were still subject to the law as evidence had to be obtained lawfully.

On vaccinations, the NPA had made a lot of effort to ensure that prosecutors were prioritised for vaccinations. Hence, with the DOH, all of the NPA officials were enrolled for prioritisation for vaccinations, and they would hopefully be vaccinated in the next two weeks along with the court staff.

With regard to community members being prosecuted for protecting themselves, each case had to be evaluated on its own merits. All matters had to be investigated thoroughly, and the NPA had to follow the evidence. If it was determined that crimes had been committed, irrespective of whom the individuals were, prosecutions had to follow. That was what the law demanded. If the cases justified prosecutions; then that had to happen. The facts of each case would determine the decisions made by the prosecutors. There were mechanisms of checks and balances on decisions made by local prosecutors, by means of review to the provincial office and further the national office. The NPA would look at matters objectively and in a way that was in the interests of justice.

The NPA did not have information available on how many people involved in the unrest were foreign nationals, so a response will have to be given after the meeting for that question.

On the taxi violence in Cape Town, structures had been put in place through the PROV JOINTS, with there being a long standing priority committee to address taxi violence. This priority committee involved the national and provincial Department of Transport, the City of Cape Town, and all other relevant departments to address the underlying causes and consequences of taxi violence. The NPA would ensure that that matter would be given the necessary attention.

The Chairperson said that the information on the foreign nationals had to be given in writing urgently so the Members could evaluate the extent to which they were involved in the unrest.

Adv Batohi said that collecting data such as the number of foreign nationals in court should be collected by the court system. It was important that these collation systems be put in place in the courts, but the NPA would see what could be done. On cybercrimes, inasmuch as the NPA had identified it as a key area and put in place mechanisms to deal with it, she was concerned about the speed with which the SAPS was getting on top of having the proper capability to deal with those crimes.

Adv Anton du Plessis, DNDPP, NPA, said that significant ramping up had to be done by the NPA and the SAPS on their ability to respond to the current and future threat of cybercrime, as this would outpace traditional criminal justice responses. The NPA had to look at working with international partners do ensure effective capacity. The NPA would have to invest, but it did have a programme in place, which was delayed by Covid-19 and the resultant inability to implement some plans. In the next year, it would be priority to report to the Committee and support the initiatives of national and regional partners.

Adv Batohi said that prosecutions could only be as effective as really good investigations. The reality was that law enforcement investigative capacity was wanting. The NPA had had meetings with the DPCI to work on ensuring a better response. It was indicated to the NPA that the SAPS, and particularly the DPCI, was putting together the necessary capabilities speedily. This was a serious issue and was of concern.

With regard to the possibility of complicit law enforcement members, processes had to implemented to ensure that those dealing with these matters which may be compromised were identified and dealt with so that a truly objective agency in place to address issues such as the recent unrest and violence. This further emphasised the point that the NPA had to hold the line on independence, and decide of prosecutions in a dispassionate way by only following the evidence and not getting involved in the highly politicised environment.

From 20 July, all members of the NPA were part of the vaccination programme. Staff members were encouraged to take the vaccination, and if they chose not to, there were procedures and protocols in place.

Adv de Kock said that the NPA had learnt many lessons in terms of how to approach dealing with backlogs. Looking at the Minister’s Directions, there were provisions for the use of an audio visual link, and in dealing with the current unrest, courts could use their discretion to use any virtual platform with audio visual links authorised by the presiding officer for all matters, as well as for bail applications. The fundamental lesson learnt was the increased use of technology to expedite cases.

Minister Lamola said that the ministry would continue to engage with the stakeholders across the country regarding the unrest and other matters. With regard to foreign nationals, the DCS would be able to break down that data when presenting about the number of inmates in the DCS facilities.

Department of Correctional Services (DCS) presentation

Mr Phiko Mbambo, Regional Commissioner: Eastern Cape, DCS, said it was important to note that the DCS had always been characterised by overcrowding in its facilities. This had resulted in human rights bodies being on the DCS’s case, and various judgments holding that the DCS had to meet a certain inmate threshold. The DCS had to observe the Mandela Rules. The recent unrest had exacerbated the problems due to the large influx of new inmates, particularly in KwaZulu-Natal and Gauteng. This had a big impact on DCS infrastructure, as evident in Umzinto, where about 193 inmates torched the facility and burnt the logistics division. Fortunately, there were no escapees, but the inmates had to be transferred to Westville, and two inmates lost their lives.

During the recent unrest, there was an opportunity for gang members to initiate those prisoners who were not hardened criminals, which meant that there would probably be a greater issue of gangsterism.  Assaults would increase. This may result in increased unnatural deaths in DCS facilities. Once these facilities were overcrowded, the DCS had to observe Covid-19 regulations and thus the matter of isolating inmates became a challenge.

The DCS had serious capacity issues, in addition to the budget and position cuts. Hence, resources were tight, which made the execution of its mandate difficult. The DCS was trying to address issues. In KwaZulu-Natal, as of 20 July, there were 1 159 arrestees, with 69 of them being foreign nationals.

National trends on remand detention accommodation

Adv Patrick Mashibini, Chief Deputy Commissioner: Remand Detention, DCS, said that the remand detainee population had decreased from August 2020. From June to July, there had been a national reduction of 1 826 remand detainees, and in Gauteng and KwaZulu-Natal, there had been a reduction of 325 and 141 respectively.

Total admitted remand detainees due to unrests

As of 19 July, in Gauteng 1 288 remand detainees had been admitted. 38 of those were foreign nationals. In KwaZulu-Natal, 299 remand detainees had been admitted, with 26 of those being foreign nationals. The total number of remand detainees had increased on 20 July to 1 900.

Impact of unrest on remand detention programmes

The DCS was experiencing a shortage of uniforms, which would have a bearing on the budget. There had to be an increased rationing scale of food due to the influx of inmates. The DCS facilities were at risk of being super-spreader locations, hence there were Covid-19 protocols in place to conduct screening on admission and place new inmates in isolation for two weeks before sending them to the general population. Should there being positive cases, those people would be isolated. There was a need for procuring additional quarantine facilities and personal protective equipment.

In terms of overcrowding, in Johannesburg Medium A, the facility was far exceeding the 28% target admission. The DCS was thus exceeding the required threshold. Medical costs would increase, as would overtime due to the DCS being short-staffed. The staff to inmate ratio far exceeded the acceptable norm of 1:5 – it was currently above 1:35. Hence, the DCS would have to employ more officials. The increasing population increased the risk of escapes, unnatural deaths, assaults, and gang activities.

Availability of AVR courts

The DCS currently had eight correctional centres linked to 26 courts in KwaZulu-Natal and Gauteng. The provision of an audio-visual link would greatly reduce the movement of remand detainees between the detention centre and the courts.

Conclusion

The DCS was doing all possible to contain challenges. All the rights of remand detainees were applied accordingly, and regions were strictly applying Covid-19 protocols. The DCS budget was greatly stretched, and it will have to reprioritise critical needs and approach National Treasury to reconsider the budget with recommendation of the Committee.

Nkosi Phathekile Holomisa, Deputy Minister of Correctional Services, emphasised that the DCS’s work had to be recognised, and its needs had to be reprioritised once again. Hence, the DCS would need the support and guidance of the Committee. It had already breached the law as decreed by the courts by breaking the threshold for remand detainees.

(See presentation for more detailed information)

Discussion

Mr G Hendricks (Al Jamah-Ah) said that it looked like the country was on the road to have a failed prison system due to budgetary constraints. The vast number of inmates and prisoners in quarantine would result in the prisons soon being considered concentration camps. Before being sent to prisons, some of the restorative justice ideas of the Minister had to be implemented at police station level. Many of the inmates were not hardened criminals but they would likely become so after their time in prison. It would be best to prevent many of those arrested from going to prison and implement alternative means, as this would work to resolve the issues of overcrowding and the strain on the DCS.

Mr Selfe noted the problems at the Umzinto prison.  It seemed that some of those inmates were jumping off the walls. He asked if that indicated a lack of preparedness for a fire. Were there any other incidences of prison unrest? Would there be an inquiry into the Umzinto incident, had it started yet, and what consequence management would there be for the officials involved?

Dr Newhoudt-Druchen asked if the DCS had already communicated with National Treasury. Was there any indication that National Treasury would be willing to augment the budget, specifically for KwaZulu-Natal and Gauteng? In terms of restorative justice, this will require the staff to assist, so would the DCS have adequate personnel to assist with those processes?

Ms Maseko-Jele mentioned that it had been required for the DCS to ensure that it had a strategy to deal with a rapid influx of inmates, considering that the purpose was to prepare those inmates for life outside of prison. She asked how far the DCS was in terms of developing new strategies and innovations, as there was no money and this situation would not end tomorrow.

The Chairperson emphasised that there was no money, but it was also clear that there was not proper management of resources by the DCS. This matter would be in issue when the annual reports were dealt with. The DCS was not helping itself with the vast amount of wasteful expenditure.

Responses

Mr Mbambo said there was an investigation underway on the Umzinto incident. It had been established that the attempted escape was planned, and the DCS had managed to identify the instigator or ring-leader. It was clear that the incident was linked to the incarceration of Jacob Zuma, as there were clues that the ring-leader was in contact with people outside of the prison. The prison officials were attacked by the inmates as they were serving them food. Fortunately, the SAPS responded by helicopter and situation was contained. The outcomes of the investigation would be shared when it was completed.

On the matter of resources, at an operational level, the DCS’s strategic plan was to be centre-centric in order to improve operations. He took note of the need for the DCS to use its resources more effectively.

Adv Mashibini thanked Mr Hendricks for his comment, as it was true that it was important for the DCS to have a strategy to apply to deal with these matters. When looking at the population of remandees, one could see that there was a steady decline due to the DCS’s remand reduction strategy. In that strategy, the DCS had an overarching overcrowding reduction policy to keep the inmate population within required levels, by utilising various means, such as the section 63(f) and section 62(a) of the Criminal Procedure Act 51 of 1977.

He emphasised that there were Covid-19 protocols in place to ensure that with the influx of remandees the prison population remained safe from the virus. On innovation, the DCS did have innovation plans. Earlier in the year, when the DCS approached the Committee regarding the budget cut, it was indicated that the DCS had put in place various innovations, such as the adjudication committee, which looked at ensuring that officials were transferred to locations where they would be better utilised. The DCS had mechanisms to look at the budget. When people left the DCS, it used those savings to employ new officials.

There were problems, which despite those innovations, required National Treasury’s assistance. He requested the Chief Financial Officer to respond to the question of approaching National Treasury for additional funding.

On the utilisation of the current resources, Mr Mbambo said that the DCS wanted to assure the Committee that during these times, it had managed to contain the situation. The DCS had plans and operating provisions to deal with issues. Following the Umzinto incident, an additional team was dispatched to try and restore the systems at the facility.

The DCS was trying to ensure that its employees were dynamic in dealing with security matters. There were some attempted escapes at other facilities. It was clear that these incidents had to do with the incarceration of Jacob Zuma. Two of the inmates involved in that escape had been arrested, but one was still at large. Regarding state property, a vehicle used by DCS officials was attacked in Mamelodi. During this period DCS officials were not safe, but they were doing their work diligently.

Dr Newhoudt-Druchen encouraged all of the officials to get vaccinated.

The Chairperson asked Mr R Dyantyi (ANC), as the Chairperson of the Correctional Services Subcommittee, to comment.

Mr Dyantyi said that he supported the need for reprioritisation, but before the DCS approached National Treasury it had was to come before the Subcommittee  as it had to have knowledge of what the DCS wanted to reprioritise. The reprioritisation had to be aligned with the objects and requirements of the DCS in order to use its resources most effectively.

On the attempted release of Jacob Zuma, it was a very serious allegation, which had to be nipped in the bud. The use of the former President was merely as a scapegoat, as an excuse to commit crimes. The DCS had to present a proactive approach to issues of prison incidents and attempted escapes. He asked for the Members to be given comprehensive feedback on the vaccination programme of the sector, with clear timelines.

He wanted the DCS to present the mitigating measures it had put in place to resolve issues of shortages of resources and overcrowding. The unrest was likely to spread in various guises beyond KwaZulu-Natal and Gauteng, and so the DCS and all relevant bodies had to act.

Closing remarks

The Chairperson thanked the Members and Ministry for being present, the NPA, DOCJD, and DCS for presenting. He said it was important for the Committee to receive a detailed vaccination programme from the DCS, DOJCD, and NPA.  He and the Members were convinced that the entities were doing a lot of work, despite all of the challenges, and for that he thanked the entities.

The meeting was adjourned.