Speech notes for the Acting Minister of Justice and Correctional Services, Hon. Faith Muthambi (MP), for the Imbizo with Parole Boards at Kgosi Mampuru II Management Area
Programme Director
Deputy Minister of Justice and Correctional Services: Honourable Thabang Makwetla (MP)
National Commissioner of the Department of Correctional Services: Mr. Zach Modise
Senior Managers of Correctional Services and other Departments
Chairpersons, Vice-Chairpersons and Secretaries of the Correctional Supervision and Parole Boards
Representatives from Case Management Committees
Distinguished guests
Ladies and gentlemen
As we, South Africans, celebrate our 23rd year of freedom, let us be reminded of the words of our founding President, the late President Nelson Mandela, who said: “We all need to join hands to rescue these [inmates] and transform them into worthy and respected citizens of our country [because] we owe it to them and we owe it to ourselves.
They are part of our society's problem and rejecting them is not going to solve the problem of crime. They are human beings too, they are our brothers, sisters, our sons and daughters who have disappointed us. They have the right to a chance to unlock their potential to better themselves.”
The responsibility of the Department of Correctional Services is not merely to keep individuals out of circulation in society, through enforcing a sentenced meted out by the court.
The responsibility of the department is first, and foremost, to correct offending behaviour in a secure, safe and humane environment, in order to facilitate the achievement of rehabilitation and avoidance of recidivism.
To this end, parole gives effect to the principle of social reintegration of an offender as part of the purpose of the correctional system. It also recognises the fact that the parolee is particularly vulnerable at the beginning of the process of social reintegration.
It must be emphasized that parole takes place under the guidance of correctional officials based in the community, and under conditions determined by the Correctional Supervision and Parole Boards (CSPBs) on the basis of the assessment of the parolee.
The parole system in South Africa in its current format was introduced into legislation in the Correctional Services Act, 111 of 1998 (CSA), which was assented to on 18 November 1998.
However, Chapter 7 of the Correctional Services Act, which deals with “Release from Correctional Centre and Placement Under Correctional Supervision and on Parole and Day Parole,” only came into operation on 1 October 2004.
Amongst others, this chapter provides for the minimum detention periods that offenders need to serve before being considered for possible placement into the system of Community Corrections; the establishment and functions of the CSPBs as well as the Correctional Supervision and Parole Review Board and Medical Parole. There are 53 CSPBs countrywide.
The CSPBs report to the Area Commissioner in terms of supervision and management, but is independent in terms of their recommendation and decision-making competencies.
In recent years, we have received much criticism about the state of parole in South Africa suggesting that the current parole system should be substantially reorganised.
In a recent story in the print media, entitled “Judge finds parole board negligent over attack by murderer,” it was found the parole board acted negligently when it approved the release of an inmate from incarceration and failed to take into account his previous convictions and violation of parole conditions.
The Judge said: Given the absence of evidence that the offender had been rehabilitated, the board ought in the circumstances to have taken reasonable steps to guard against the foreseeable harms of the offender’s release on parole, by refusing his application. Failure to do so was (gross)…….negligence.
However, the Department continues to work hard to turn prisons into correctional centres. Earlier this year, during the State of the Nation Address, the President of the Republic of South Africa, His Excellency Mr. Jacob Zuma, said: “One of the strategies of fighting crime is to ensure that those who are released from prison do not commit crime again.
The Department of Correctional Services continues to work hard to turn prisons into correctional centres through offering various services….”
Over a period of 50 years, from 1965/66 to 2015/16, the daily average inmate population in our country increased from 74,435 to 159,331. This represents an increase of 114.06%. During the same period, national overcrowding was reduced from 40.25% to 33.74%.
To me, this is an indication of how we need to ensure that our Parole Boards are supported, and empowered, through mandatory orientation for new board members, refresher training on decision-making as well as constant research on international best practice in the field of parole.
The highest level of overcrowding was experienced between 1999 and 2004. As at 16th February 2017, the Department had 161,148 inmates in its 243 correctional facilities. Of these inmates, 116,981 were sentenced and 44,167 were unsentenced.
In terms of the regional distribution of inmates, the region with the highest number of inmates was Gauteng followed by Western Cape and KwaZulu-Natal. The regions with the lowest number of inmates were Eastern Cape, followed by Limpopo/Mpumalanga/North West (LMN) and Free State/Northern Cape (FS/NC).
In terms of occupancy, the region with the highest level of overcrowding was Eastern Cape followed by Western Cape, KwaZulu-Natal and Gauteng. The regions with the lowest level of overcrowding were FS/NC followed by LMN. The region with the most overcrowded facilities was Western Cape, followed by Eastern Cape and KwaZulu-Natal. The regions with fewer overcrowded facilities were FS/NC, followed by Gauteng and LMN.
It is important, therefore, that we ensure that our Parole Boards, in regions were overcrowding is experienced, are properly resourced and supported.
We are meeting here today at an important time. On 23rd February 2017, in the matter between Sonke Gender Justice and the Government of the Republic of South Africa, in the High Court of South Africa, Western Cape Division, Judge Saldanha said the following: “One of the many challenges faced by the new democratic order in 1994 was the notoriously overcrowded and inhumane conditions that prevailed in several of the correctional facilities across the country.
In recognition of and consistent with its foundational values the democratic state boldly entrenched in the new constitution, ‘that everyone who is detained, including sentenced prisoners has the right…… to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment….’ and ‘not to be treated or punished in a cruel, inhumane or degrading way’.
These rights as well as all the other rights enshrined in the Constitution heralded a dramatic break with the past and were premised on the immutable principle of human dignity and in respect of awaiting trial detainees, their right to the presumption of innocence.
These rights informed the very protections enacted by the State when it legislated a new Correctional Services Act No 111 of 1998. It set as its core purpose and object the establishment of a correctional system that contributed to the maintenance of a just, peaceful and safe society by ‘….. detaining all inmates in safe custody while ensuring their human dignity.’”
Now is, certainly, the time to test the principles and practices of our parole system, to see whether they offer useful lessons to us, as government, struggling to keep crime rates low, reduce inmate populations responsibly and cut overall corrections costs.
To parse the lessons from our parole experience, it is useful to think of the parole system as serving three critical functions in our sentencing and corrections system each with different insights for our current situation.
Firstly, parole boards make decisions about who should be released from incarceration, when they should be released and under what conditions they should be released. Secondly, the Department’s Community Corrections Branch operates a network of supervision over those who have been released, enforcing conditions of release and supporting and monitoring released inmates as they return to society.
Thirdly, community corrections and parole boards decide how to respond to violations of those conditions, and who should be returned to a correctional facility because their parole has been revoked.
The White Paper on Corrections has laid the foundation for the current focus on rehabilitation of offenders. In Chapter 9 of the White Paper, the Needs Based Correctional Sentence Plan is discussed in detail.
It is acknowledged, through the offender rehabilitation path, that preparation for release/placement on parole starts at admission, through assessment and the development of a correctional sentence plan.
In addition to the Saldanha judgement and various other challenges experienced in the correctional system since the dawn of democracy, disputes and complaints about the functioning of the current parole system have also been on the rise in recent years.
It is commonly recognised that the current parole system, which has been introduced in 2004 (based on a model developed already in 1997 and legislated in 1998), is regarded as outdated, and in need of revision.
For all practical purposes, the current system is now nearly 20 years old.
This led the Minister of Justice and Correctional Services, Honourable Adv. Michael Masutha, to request a review of the Parole Administration System. In order to give effect to the Minister’s request, the National Commissioner of Correctional Services appointed a project team with a mandate to provide recommendations on a proposed new Parole Administration System.
The Task Team concluded its work, and submitted a draft position paper on a revised parole system for South Africa to the Minister. The Minister subsequently, in February 2017, requested that the Paper be consulted with, inter alia, the NCCS, the Inspecting Judge, Medical Parole Board, the Legislation Drafting Division at Department of Justice and CSPBs.
As you will see on the programme, later today you will also have an opportunity to provide your valuable inputs to this draft positon paper.
We must also deal with the important issue of backlogs with regards to parole. I am also aware, and have been briefed, of issues relating to conditions of service pertaining to your contracts.
As this matter is before the courts, we are not at liberty to go into a detailed discussion but conditions of service, as it relates to the draft position paper, also forms part of the agenda today. No contracts will be terminated as contracts were extended until 31 March 2018, and we will only fill vacant positions.
Once feedback has been received from the relevant role-players, the draft Position Paper will be amended before re-submission to the Executive for approval.
Draft legislation to enable operationalisation of the proposed new parole system will be finalised, and will be submitted to the Deputy Minister and the Minister for comments/ guidance on the proposals. Following feedback, it will be amended accordingly and will then be submitted for principle approval.
After the proposed legislation has been approved in principle, DCS should engage in comprehensive consultations, both internally and externally, as part of the Socio-Economic Impact Assessment System (SEIAS). Thereafter, it will be submitted to Cabinet for formal approval to Parliament.
Once approved, it is proposed that further consultation be done. The Minister may consider holding a colloquium with relevant stakeholders, including selected NGOs, CBOs and FBOs.
Once engagements with the various stakeholders have been concluded, the necessary amendments will be made and the formal approval of the proposed Bill will proceed to Cabinet and Parliament.
Whilst the above-mentioned processes are continuing, the required regulations and delegations will also be developed to be ready for approval shortly after the Bill has been passed by Parliament. In the meantime, development of policies and procedures will also be undertaken.
In short, I agree that now is the time for a total re-examination of the South African approach to parole. Our parole system has undergone significant shifts over the past decades, and also has a significant role in the current overcrowding and fiscal crisis.
Now is the time to articulate a new jurisprudence of parole, perhaps with new language and certainly with new operational constructs, that recognizes the reality that almost everyone we incarcerate will return home.
The important question is how they are prepared for that inevitable journey, and whether they come home to stay? I thank you for attending this Imbizo, which I hope will yield much fruit.
I am eager to watch your work over the coming years, and I encourage you to be fearless in asking the tough questions, and providing the honest answers, that our country so desperately needs.
I thank you.
