SAHRC recommendations; JICS on smuggling cigarettes into Correctional Centre in lockdown

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Justice and Correctional Services

25 May 2021
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Video: Portfolio Committee on Justice and Correctional Services

Deliberations took place on the filling of the two South African Human Rights Commission vacancies. It was highlighted that two of the candidates had failed to disclose a 2019 civil judgment and a 1986 criminal record for a traffic violation, as revealed by the State Security Agency. The Committee referred this to Parliament Legal Services which had indicated that the candidates were still legally eligible to be appointed.

The failure to disclose was highlighted as a significant factor by the Committee, although it was felt that this was not necessarily intentional. It brought into question the ethics and honesty of the candidates. It was unclear when the debt was settled by the one candidate. It was suggested that in future the Committee needed to be more explicit and indicate the implications of failure to disclose – so that a candidate did so knowingly. The Chairperson stated that as there was nothing in law that prevented them from being considered despite that challenge, Members would make up their own mind on whom to recommend.

The Committee voted on the recommendations: Ms Fatima Chohan was proposed as Deputy Chair and Ms Philile Ntuli as the full-time Commissioner of the South African Human Rights Commission.

The Judicial Inspectorate for Correctional Services presented its investigation into the smuggling of cigarettes into a correctional facility during the level three lockdown by one of its Independent Correctional Centre Visitors. The charges against the ICCV and the outcome of the .

The Committee asked about the role of the Independent Correctional Centre Visitors and if their training included ethics and moral values training.

Meeting report

South African Human Rights Commission vacancies: recommendations
The Chairperson stated that at the previous meeting after interviewing eight candidates, they needed to await the results of the State Security Agency (SSA) screening. The results arrived during the Easter recess. The results showed that all were fine, with the exception of two, Commissioner Ben Sibanyoni and Ms Philile Ntuli. On Commissioner Sibanyoni, SSA picked up a criminal offence that occurred 35 years ago. On Ms Ntuli, they picked up a previous civil judgement. He had asked the two applicants to explain themselves in writing. Mr Sibanyoni wrote a long letter explaining himself which was circulated to the Committee. Ms Ntuli provided a letter from her attorneys confirming that the debt was paid in full. It was possible that SSA was unable to pick that up. The Committee had sought advice from Parliament Legal Services on the two candidates. The report from Parliament Legal Services reflected that the candidates were eligible to be appointed if the Committee wished to appoint them.

Discussion
Adv G Breytenbach (DA) stated that the failure to disclose was a problem. While neither of the problems were massive, one being a very old road traffic violation and the other a civil judgement – the issue was really the failure to disclose. If one was a fit and proper person and had a well-developed sense of ethics and honesty, one would have disclosed this. Regardless of the legal opinion and the suitability of the candidates, she had a problem with the failure to disclose.

Ms N Maseko-Jele (ANC) stated that although she agreed with Adv Breytenbach, they needed to encourage people to answer the questionnaire they give them – honestly and fully. On the other hand, when she read the advice from the Legal Team, she realised she should check if she has an old debt – as one normally did not check if it was cleared. They needed to double-check themselves. The other offence occurred over 30 years ago – she thought this was just an oversight. Given the reasons provided – there was no cause not to give them a chance but reprimand them. One should rather say, ‘in my knowledge, I’m not aware of anything'. She suggested it may have simply been an oversight on their part.

Ms T Msane (EFF) stated that although it rendered a candidate questionable, if they did not disclose, they needed to consider the circumstances. They got good advice from the Legal Team. Mr Sibanyoni was not imprisoned. He was also currently serving as a part-time Commissioner. For him to be serving as a part-time Commissioner, was it not a requirement to state he was fit or proper and declare his criminal record. She would certainly find it questionable that Ms Ntuli has a judgement – even if small. As parliamentarians and law makers, they needed to uphold that having a judgement against one is not a good thing. However, Ms Ntuli did her best to clear it. The Committee knew that it was very difficult for an African Black person living in society today to service all one's debts, as circumstances changed. The candidates were not rendered unsuitable – they had received advice on this. Adv Breytenbach was correct, they needed to promote transparency and honesty. The legal advice they got should suffice.

Mr S Swart (ACDP) stated that Adv Breytenbach had picked up on failure to disclose – it was a challenge. With respect to Adv Sibanyoni, he was already a part-time Commissioner. The law did not disqualify the candidate. Should their names be put forward by any of the Members – although they were not disqualified by law - there could be a questions. It was something they did need to consider but it did not disqualify either of the candidates.

Mr W Horn (DA) stated that the fact that there were no legal hurdles standing in the way of the selection of those candidates, did not mean that the Committee were not entitled or obligated to take into account all relevant information. In that light he added his voice to that of Adv Breytenbach in saying that those specific matters were relevant to their decision.

Mr R Dyantyi (ANC) noted the important point raised by Adv Breytenbach. They placed a premium on the integrity and credibility of judicial officers and, in this case, of those taking responsibility on behalf of a Chapter Nine institution. It was important that the principle of the matter was embraced by all of them. There is a deliberate way of concealing misdemeanours – in this case there was no deliberate attempt. He did not see the Committee penalising these two candidates on the issues. He did not want to suggest that the two members knowingly withheld the information. Mr Swart was correct – the law did not prohibit them from being considered – but they would need to be firm on such issues of integrity and embrace the points made by Adv Breytenbach. The Committee was in a good position to consider all of the candidates including the ones where issues were raised. He wanted them to proceed in that manner. He wanted them to be considered based on their performance in the interviews, and if in the Committee’s view they qualified for appointment as commissioners.

The Chairperson asked the Committee Secretary if there was something to the effect that Ms Ntuli paid the debt in 2019.

The Committee Secretary replied that it was a 2019 case. It stated the case dated back to 2019.

The Chairperson asked if the letter indicated when she had paid it.

The Committee Secretary responded to state that the letter did not indicate this. It only indicated that the case number dated back to 2019.

Ms Msane said that she had seen the letter on the proof of settlement which was dated 26 March 2021. The case dated back to 2019. The settlement letter was dated 26 March 2021.

The Chairperson stated that they agreed about disclosure. They should encourage people to disclose and it was regrettable that they had not. He suggested they needed to be more explicit in future and indicate the implications of failure to disclose – so that a candidate did so knowingly. Given the advice that the Committee received, there was nothing in law that prevented them from being considered despite that challenge, Members would make up their own minds, taking that into account.

Finalisation of Recommendations
Mr Swart nominated Rev Moss Ntlha as Deputy Chair and Mr Leonardus Joubert as Commissioner.

Adv Breytenbach proposed Ms Vidhu Vedalankar as Commissioner and Ms Ferial Adam as Deputy Chair.

Ms Maseko-Jele proposed Ms Fatima Chohan for Deputy Chair and Ms Philile Ntuli for Commissioner.

Ms W Newhoudt-Druchen (ANC) proposed Ms Chohan for Deputy Chair and Ms Ntuli for Commissioner.

Ms Msane proposed Mr Sibanyoni for Commissioner and Rev Ntlha for Deputy Chair.

Mr X Nqola (ANC) seconded Ms Chohan for Deputy Chair and Ms Ntuli for Commissioner.

Mr Dyantyi supported Ms Ntuli for Commissioner and Ms Chohan for Deputy Chair.

Mr Horn said he would support the proposal by Adv Breytenbach, as he had been unable to attend the interviews.

The Chairperson asked the Committee Secretary to count the numbers.

The Secretary stated that there were five nominations for Ms Chohan as Deputy Chair and Ms Ntuli as Commissioner. There were two nominations for Rev Ntlha as Commissioner – one of the two said he should be appointed Deputy Chair. There was one for Ms Vedalankar, one for Mr Joubert and two for Ms Adam.

The Chairperson concluded that Ms Fatima Chohan was proposed as Deputy Chair and Ms Philile Ntuli as full-time Commissioner.

Mr Dyantyi, Subcommittee Chairperson, led the rest of the meeting.

Investigation of smuggling of cigarettes into correctional centre during lockdown
Inspecting Judge Edwin Cameron of the Judicial Inspectorate for Correctional Services (JICS) and Mr Vickash Misser, JICS Chief Executive, introduced the presentation.

Ms Thembelihle Nhlanzi-Ngema, JICS Director of Legal Services, presented:
• It was brought to the attention of a Senior Manager at the Krugersdorp Correctional Centre (CC) by an inmate that an Independent Correctional Centre Visitor (ICCV) of JICS was smuggling contraband cigarettes into the CC.
• With reference, the Senior Manager (accompanied by another Correctional Services official) conducted a search at the office of the ICCV, Mr TG Nkwanyana.
• Before the search could be conducted, Mr Nkwanyana disclosed six packets of cigarettes.
• At the time of the incident in August 2020 the country was under National Lockdown Level 3, in line with the Disaster Management Act.
• The ICCV was charged with three counts of misconduct:
- Failure to comply with, or contravention of an Act, Regulation or legal obligation.
- Being in possession of an illegal, unauthorised, habit-forming or stupefying drug on department premises;
- Contravention of Correctional Services Act, Act 111 of 1998.
• Pending the disciplinary enquiry process, Mr Nkwanyana was temporarily transferred to JICS Northern Management Regional Office (NMR), Centurion.
• During the disciplinary hearing on 3 November 2020, Mr Nkwanyana chose not to be represented by a union representative or fellow employee. He pleaded guilty to all the charges.
• Mr Nkwanyana tendered his resignation at the commencement of the disciplinary hearing. The Chairperson of the enquiry explained that the service termination (resignation) and disciplinary hearing are two separate processes and that he, as the Chairperson, does not have any jurisdiction on the resignation process and therefore the disciplinary hearing should proceed.
• Mr Nkwanyana did not contest the testimony of the employer witness at the disciplinary hearing.
• Witnesses from the Department of Correctional Services testified that the trust relationship with this ICCV had irretrievably broken down.
• Mr Nkwanyana was found guilty of misconduct by the appointed chairperson.
• As mitigating factors, Mr Nkwanyana submitted that he has shown remorse and that he will not repeat the transgression. The ICCV submitted that he should not be dismissed from employment and indicated that his employment contract with JICS will expire on 20 November 2020.
• The chairperson took cognisance of the remorse shown and recommended that although Mr Nkwanyana is dismissed, he should be allowed to continue to serve the remainder of his employment contract (13 working days) at the NMR.
• This recommendation and sanction was accepted by the delegated authority and the ICCVs services were terminated on 20 November 2020.

Discussion
Ms Newhoudt-Druchen asked what an ICCV really did – what was the role? Given what had happened – what training did they receive prior to doing their duties to keep the high standards and expectations of JICS? Did they get ethical and moral values training from JICS?

Inspecting Judge Edwin Cameron stated that there were around 220 ICCVs – there was supposedly one for every correctional centre. The importance of the ICCVs was that they acted like a nervous system. They were in the prisons almost every day or at least a few times a week. They knew the correctional personnel and the incarcerated persons. They warned them if there were incidents of violence or impending trouble. JICS was presently in earnest discussions with the Minister and with the National Commissioner about a proposed budget cut of R7 million to the JICS already very modest budget. That would hurt them mostly in the area of ICCVs. They did not have a big personnel budget – most of it was spent keeping the ICCVs in place. JICS trained the ICCVs. The 2020 training was carefully planned and set up for April which of course got cancelled as a result of the national lockdown. They certainly did get training on ethics. JICS hoped to resume the level of training the ICCVs required in the near future.

Mr Vickash Misser, JICS Chief Executive, explained that the ICCV programme came from the Correctional Services Act. They were previously appointed as a service provider to JICS and not aligned to the ‘public service'. During his office, they canvassed this with the Department of Public Service and Administration and decided to align the entire programme to what they called ‘new public management'. They aligned it to public service. Since 1 April 2019, all ICCVs have been migrated from an old system to ‘new public management'. All ICCVs were trained extensively with a curriculum of ten modules that was developed with experts on various subject matters. This was presented to them during a week’s training programme as an induction and orientation programme. They were taken ‘by the hand’ into a centre, introduced to the Correctional Services officials and acquainted with the surroundings of that environment. The training covered the use of force and dealing with death at centres, to name two aspects of the ICCV training curriculum. JICS can make the curriculum available to the Committee. HR, ethics and disciplinary issues conformed to the new public service. This was what they had done to re-engineer the programme.

Mr Misser stated that a webinar would take place later that week, which would cover the use of force in correctional facilities and align it to the United Nations protocols. It was an international platform. They had made the links available to the Secretariat. Members were welcome to join them for the two-day session.

The Inspecting Judge added that the webinar was taking place over two days from 12pm to 2pm.

Mr Dyantyi made brief closing remarks before the meeting was adjourned.

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