JUDICIAL INSPECTORATE FOR CORRECTIONAL SERVICES: SUBMISSIONS ON THE CORRECTIONAL MATTERS AMENDMENT BILL [B 41 – 2010]: 14 JANUARY 2011.

The Correctional Matters Amendment Bill [B 41 – 2010] (hereinafter the “Bill”) sets out, in the accompanying memorandum on its objects, the intention to improve the administration of three key areas of corrections, namely medical parole, the parole system in general and the management of remand detention.

The Judicial Inspectorate for Correctional Services (hereinafter the “Inspectorate”) submits, in general, that any proposed legislative change must be necessary, practically implementable, cost-effective and, importantly, constitutionally aligned.

The Inspectorate’s submissions are aimed at contributing to the public debate on the Bill and are addressed thematically. Where necessary reference is made to the applicable clause(s) of the Bill.

Medical Parole

The Inspectorate welcomes the recognition that the current provision excludes from consideration for release on medical grounds a significant number of inmates who do not meet the threshold requirement of being diagnosed as being in the final phase of any terminal illness or condition, but for whom imprisonment is not appropriate to their particular circumstances.

Over recent years the Inspectorate has reported on the rate of “natural” deaths occurring in our centres and the small percentage of inmates released on medical grounds. Our Independent Visitors have repeatedly reported that this has been attributable to the restricted opportunity for release under the current provision.

Whilst the proposed amendment widens the opportunity for consideration to include an offender being physically incapacitated so as to limit daily activity or self-care of inmates, the Bill does not address the possibility that an inmate may suffer from a severe mental illness which may limit daily activity or self-care. It appears that the Committee should include mentally ill offenders as being worthy of empathetic consideration for purposes of medical parole. In this regard the relevant provisions of the Mental Health Care Act 17 of 2002 must be aligned with those of the Correctional Services Act 111 of 1998 (hereinafter “the Act”) and the proposed amendments in the Bill under deliberation.

The Inspectorate has raised concerns regarding the incarceration of mentally ill inmates under conditions not consonant with dignity as a result of the lack of specialised mental health facilities in correctional centres or under the control of provincial health departments.

Insofar as the procedure for an application for medical parole is concerned the proposed amendments appear to be sound. The power of the Minister to establish a medical advisory board for each province with a view to providing the Correctional Supervision and Parole Board with an independent medical report, is to be welcomed. The composition, expertise and cost of the medical advisory board, however, are unclear and require some clarity before any meaningful comments can be made.

The intention underlying clause 4 of the Bill in disallowing a sentenced offender, whose medical condition is self-induced, to be placed on medical parole seems, at first blush, to be cogent. There may, however, be cases where the nexus between the cause and effect of such medical condition is so remote that the mischief the amendment seeks to avoid, namely to prevent intentional conduct by an offender to induce a release, is drafted too restrictively and hence prevents the inmate from bringing a meritorious application. Examples include attempted suicide by an offender some time before his incarceration, incapaciting him to the extent that his daily activity or self-care is severely limited.

Remand detention

The Bill seeks to replace Chapter V (sections 46-49) of the Act, which bears the heading “Unsentenced Offenders”. In the memorandum accompanying the Bill the intention to refine the remand detention system is predicated on the policy view that remand detention is a distinct function from corrections. The Bill envisages empowering the Minister in clause 3 to “…establish and review the establishment of correctional centres and remand detention facilities…” . The memorandum suggests the creation of a new branch within the Department which will require the establishment of a remand detention budget programme and the allocation of funds to it. The financial implications attendant on the establishment of such a branch will, according to the memorandum, inevitably result in organisational and personnel implications.

The Inspectorate is of the view that, whilst the core function of the Department is the correction of sentenced offenders, unsentenced persons are best held in facilities under the jurisdiction of the Department as opposed to police cells or other forms of incarceration. It is apparent that police cells do not meet the constitutional requirement of humane conditions of detention for even a short period, with the exception, perhaps, of the so-called “48-hour period” between the arrest of a suspect and his first appearance in a court. The status quo, namely that unsentenced inmates are, by and large, indeed detained in the Department’s correctional facilities, should, in our view, be preserved.

It appears further that the cost of specified clothing and other relevant expenses will require a substantial budgetary allocation with a view to accommodating this category of detainee. The Inspectorate has not been privy to the actual cost of instituting a remand detention category of inmates but it is clear that this requires careful consideration when contemplating this Bill. Any significant budgetary allocation in this regard may have a deleterious effect on the treatment of sentenced offenders whose medical, social and educational well-being is seminal in achieving the goal of safe custody under humane conditions and in promoting social responsibility for the humane development of all sentenced offenders.

Chapter III (sections 4-35) is headed “Custody of all inmates under conditions of human dignity” and is as such applicable to all inmates, irrespective of whether they have been sentenced or not. This is in line with the Bill of Rights which does not differentiate between categories or classes of inmates. With this in mind it is not clear why, in the definition of “inmate” in clause 1 of the Bill, reference is made only to certain sections of the Act, thereby creating the impression that other relevant sections are excluded.

The definition of a “remand detention facility” in clause 1 is generally welcomed for its wide ambit. Clarity is, however, required as to whether the Inspectorate’s momitoring mandate includes police cells or lock-ups. Sections 115 and 117 of the Act create specific offences in respect of escaping or absconding from lawful custody and the reference thereto in the definition is unclear.

Similarly the proposed amendment of section 5 of the Act by the substitution of sub-section (2) thereof requires clarity as to the jurisdiction of the Inspectorate to monitor a police cell in which an inmate is detained.

It appears that the Inspectorate’s jurisdiction is indeed confirmed by the proposed amendment of section 90 of the Act to include remand detention facilities. It appears, however, that the concomitant provisions relating to the Inspectorate have not been considered for amendment, an anomaly which should be rectified.

As for clause 9 of the Bill we submit that the phrase “such changes as may be required by the context” lacks specificity, with the probable consequence that the implementers of the legislation with encounter interpretative problems and attendant uncertainty as to the intention of the legislature.

The issue of a differentiated uniform for remand detainees as provided in clause 47 of the Bill is motivated, in the memorandum, by considerations of security. This is prima facie justifiable. It is reinforced by the fact that many detainees awaiting trial do not have the financial means or support structure to furnish them with fresh clothing as may be required during extended stays in detention. The provision of a differentiated uniform at State expense would hence appear to constitute a laudable and constitutionally acceptable proposal which should not be regarded as discriminatory. What appears not to have been addressed, however, is the appearance of a remand detainee in court where the public may identify him or her, thereby impinging on his or her right to be presumed innocent. It may be prudent to allow such detainees to attend court in the clothes of their choice.

The proposal set forth in clause 49 of the Bill appears to be unacceptable inasmuch as it refers to “any person”, which may include the inmate, his family or even the Judicial Inspectorate. In this regard the applicable provisions of the Promotion of Access to Information Act, 2000 (PAIA) provide for a long and somewhat convoluted process. The timeous receipt of information affecting the rights of an inmate may be delayed by the PAIA procedure. This may, of course, be mitigated by harmonising PAIA with the Bill or by the Department’s voluntarily disclosing specified information relating to remand detainees.

Whilst the Inspectorate welcomes the attention the Bill gives to the “vulnerable” category of remand detainees, namely the disabled, aged and mentally ill, their detention may fall short of the requirement of appropriate and suitable conditions in centres and treatment of inmates. This may be attributable to the special needs of such categories of persons and the limited availability of resources. It may be prudent to counter this by requiring the Department to provide a specific time- restricted plan against which the reasonableness thereof can be measured. In this regard it may be advisable to consider enacting a specific regulation for such cases rather than proceeding with the current proposal.

Clauses 49E and 49G are generally welcomed in that they aim to involve various important functionaries in the criminal justice sector, namely court officials and prosecution services. The Inspectorate has frequently been critical of the large number of awaiting-trail detainees in correctional centres and the lengthy delays in finalising trials. The proposed provisions must, of course, be brought in line with the relevant provisions of the Criminal Procedure Act 51 of 1977.

Clause 49F raises various concerns, including the conditions under which a detainee released into the custody of the South African Police Service receives and his or her monitoring. In this regard the Inspectorate’s responsibility towards such person would be thwarted unless the Bill enjoins the Department to notify the Inspectorate of transfers of this nature and Independent Visitors have unfettered access to him or her.

The Parole System

The proposed substitution of section 73 of the Act, as considered by the National Council for Correctional Services, is supported by the Inspectorate.

Conclusion

The Inspectorate records its appreciation to the Portfolio Committee on Correctional Services for eliciting its comments on the Bill and inviting it to be present at the relevant discussions to be held in Parliament on 25 January 2011.

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