Ladies and Gentlemen
I have called this media briefing to give an update with regards to 5 issues that include parole matters and discipline at our correctional centres which continue to dominate the media space, especially for those sentenced to life, whom we refer to as lifers. We have noticed an increased volume of litigation brought by lifers, citing me as the Minister of Justice and Correctional Services, alleging that I have imposed further impediments that cause unnecessary delay in the finalization of their parole applications. The issue of political prisoners is a matter that has repeatedly been raised hence its inclusion at this briefing. A review of the parole system is still being developed by the department and will be communicated to all stakeholders to study our position paper and make invaluable inputs.
Before I can deal with the issues of Parole consideration for lifers, Political prisoners and review of the Parole system, it is important that I commend the department’s correctional officials across the country who continue to do a sterling job in securing our correctional centres under trying and difficult circumstances. Yes, from time-to-time we do experience lapses in the system. A case in point is the recent unfortunate incident in Johannesburg Correctional Centre, Medium B where of our officials allowed inappropriately dressed performers to entertain inmates. When this was brought to my attention I immediately instructed the Acting National Commissioner, Mr James Smalberger to investigate the matter. I have since received the first report wherein thirteen (13) officials have been identified to have flouted our policies and procedures. I can report that ten (10) of them have been served with letters informing them of the intention to suspend and given an opportunity of 24 hours to show cause why they should not be suspended, while the remaining three will be served when back on official duty. Once more, allow me to apologize to the citizens of South Africa for this incident and we will ensure that it does not happen again.
With regards to broader security interventions, the National Commissioner has appointed a number of task teams between the period 2014 to 2016 to conduct several clean-up operations at various correctional centres. These resulted in a number of contrabands being confiscated from inmates. This is part of the national Back-to-Basics campaign which was launched on 7 May 2015 at Umzinto village in Durban to re-establish all the basic security principles in the department.
1. Parole consideration of lifers
With the enactment of section 73 of the Correctional Services Act, 1998 (Act no 111 of 1998), on 1 October 2004, the minimum detention period now for lifers is 25 years.
The two most notable cases that have had an impact on the minimum detention period to be served before one is considered for parole is the Van Vuuren and Van Wyk judgements.
Van Vuuren Judgement:
On the 30 September 2010, the Constitutional Court made a ruling in the case of Van Vuren v Minister of Correctional Services and Others. This ruling brought about a change in the manner in which inmates sentenced to life incarceration before 1 October 2004 are considered for placement on parole.
In summary, the Court held that those offenders sentenced to life before 1 October 2004 be considered for the possibility of released on parole after serving a period of 20 years, with a few exceptions.
This category of offenders became known as the Van Vuuren cases. At the time of this Judgment, there Department had 369 offenders belonging to this category. Since then, 276 have been placed out on parole, into the system of Community Corrections and 93 are still incarcerated at various centres and are continuously being considered for placement on parole on an ongoing basis depending on each offenders rehabilitation process.
Van Wyk Judgement
On 15 July 2011, the North Gauteng High Court made a ruling on offenders sentenced to life before 1 October 2004. In summary, the court ruled that the applicant (an offender sentenced to life before 1 October 2004) and other offenders who were serving sentences of life before 1 October 2004 are entitled to:
a) Have the date on which they may be considered for parole advanced by credits earned in terms of section 22A of the Correctional Services Act, 1959, subject to applicable criteria for the allocation of credits.
b) Be considered for parole in terms of the policy of the department which applied at the date of the commission of the crimes for which they are serving life imprisonment.
This meant that immediately, the 20 years consideration date was brought forward by 6 years and 8 months.
Compounding of challenges
As all of these cases would otherwise only have been considered 6 years and 8 months later, there were very few lifers who had undergone the newly introduced assessment and sentence plan process of 2009 which had been introduced by sections 36 and 37 of the Correctional Services Act. .
By May 2012, a total of 310 had been considered with another 114 still outstanding. However, in June 2012 the President approved a general special remission of sentence which further advanced the consideration date of lifers with another 6 months. Other sentenced offenders could receive a maximum of 24 months special remission of sentence which also advanced the consideration and release dates.
Whilst still attempting to finalise Van Wyk cases which were already eligible, a court ruling in April 2016 (Cite case)also made the 2005 special remission of sentence applicable to all lifers who were originally excluded. The impact of this was that again the consideration date of lifers was advanced by another period of six (6) months . Taking the allocation of credits as well as the two special remissions of sentence into consideration, it now meant that the Van Wyk group of offenders became eligible for consideration for parole after serving a minimum period of 12 years and four (4) months of their life sentence.
Since the date of this Judgment, approximately 1412 offenders have been considered for parole placement. I have, since assuming office in May 2014, considered 1124 parole applications brought before me of offenders serving life sentences. Of this group, I have released only 291.
It is important to state that this group of lifers, has the lowest rate of non-compliance to parole conditions. As a result of compliance to parole conditions by this group of offenders, low rate of recidivism as well as a low percentage of this group being released on parole, it became clear that a petition to the courts on setting aside this Judgment would not be necessary as only a few, about 30% offenders in this group have been released out on parole.
Administrative steps by the DCS to eradicate the backlogs.
As part of assessing offenders serving life sentences, professional reports and recommendations on risk and rehabilitation are highly considered in this process. Unfortunately, the combined lack of reports from Social Workers and Psychologists as well as outstanding Restorative Justice interventions were cited to be the main reasons why submission of profiles to Parole Boards are delayed. It is nonetheless important to state that DCS has embarked on a project to fill these vacancies. About half of these vacancies have been filled and there are still challenges to attract professionals to work in the correctional environment.
In addition, regions have embarked on a number of strategies to get such specialists to finalise the required reports. In some circumstances, offenders are transferred to centres where such services by Social Workers and Psychologists are available.
On 30 March 2017, the National Commissioner sent a circular to all regions reiterating procedures to be followed when profiles for lifers are submitted.
Furthermore, and just recently, the National Commissioner requested Regions to set up task teams starting from centre level, all the way to a regional level strictly to manage the backlogs of cases for parole consideration. Regions were provided with templates to assist in managing outstanding interventions/ documents. Specific matters raised in the Circular which have to be addressed by regions included: obtaining of sentence remarks, SAPS involvement, managing delays in signing off on profile reports, managing court orders, reporting on litigation, reporting on Restorative Justice processes and ensuring compliance with decisions of the Minister.
As of the 21st June 2017, a total number of 1412 Van Wyk cases have been considered and only a mere 291 are currently out on parole, be it day parole or normal parole. This category, again will be on parole and monitored for the rest of their lives.
It is important to state that a number of deliberations goes into consideration when lifer profiles are discussed for a possible release on parole. The rehabilitation process undertaken by that specific offenders, interventions identified by professionals and provided for, the views of victims and communities affected and also the threat the offender still possess to the society at large. These are all properly weighed before any decision can be undertaken to either release or deny parole to an offender.
1. Offenders incarcerated for politically motivated offences
In November 2007, the former President Thabo Mbeki established the Special Dispensation Process (SDP) which was intended to assist him (the President) in deciding on the pardon for alleged political offenders.
The Reference Group (RG), consisting of members of the different political parties represented in Parliament, was created to evaluate the applications and make recommendations to the President as to whether or not a pardon should be granted. According to the Final Report of the Reference Group, they dealt with 2109 applications. Pardon was recommended in 149 cases. The RG advised the President in the remaining 1960 matters not to grant pardon.
I then appointed a Ministerial Task Team on Political Offenders (appointed on the 1st December 2014) to consider cases of offenders who are still serving sentences whose offences were deemed to have been politically motivated and were recommended for pardon by the then Reference Group.
The Task Team has finalized the first phase of this work which entailed processing the 149 list of those that were approved by the Reference Group. At the start of this process, only 51 were traced to still be serving sentences in Correctional facilities. The Team has assisted with the release of 39 offenders, who are now on parole. It is important to state that the release of these offenders on parole was in accordance with the departments’ policies and prescripts governing the release of offenders on parole. Currently, only 12 remain in correctional facilities.
The Task Team is currently busy with the second phase which entails the following;
Tracing of the remaining 1960 applicants
Tracing of the co-accused (accomplices) from the first phase (149 list)
Minister’s engagement with political parties with a view to updating the parties on the entire process thus far and highlighting their roles in support of offenders.
The Task Team has as of May 2017, gathered the following information on the remaining 1960 applicants:
The Original number of applicants that applied in the whole Country was 2109
Those shortlisted for recommendation for Pardon was 149
Those whose crimes were considered political in nature but not shortlisted was 1313
Those excluded as their applications were received after the cut-off date were 438
Those excluded as their offenses were sexual in nature was 65
Those excluded as their offences were drug related were 5
Lastly, those excluded by virtue of having been denied or refused Amnesty by the TRC were 139
2. Litigation cases by lifers
The Department has experienced numerous litigations for not considering offenders timeously, and more and litigation are anticipated given the current backlog of offenders who are now partaking in hunger strikes and sit-ins in the Correctional Centres due to delays in submission of their profiles. This has also resulted in overcrowding levels as offender population increased in some of our centres.
The number of motion applications from lifers has been increasing over the years. We receive these motions almost on daily basis.
These motions are related to the following:-
Challenging my decision not to place them on parole through review applications in terms of PAJA.
Further to the above, lifers also launch applications for my attention to consider their profiles which are overdue in terms of the relevant provisions of the CSA and also according to previous decisions made by myself for further profiling. This includes citing not only me as the Minister, but also the National Commissioner, parole boards, Case Management Committees and the NCCS
We are also facing serious challenges from Lawyers for Human Rights and the Human Rights Commission regarding groups of lifers at various centres who have not been considered timeously in terms of the Act.
Most recently the Durban High Court made and order in case of Christmas and others vs the Minister of Justice and Correctional Services wherein it decided that offenders serving life sentences maybe considered for parole once they reached their minimum detention period in the absence of reports by social workers, psychologist sentencing remarks, SAP62, SAP69 should these not be available at the time when they are due for consideration. I have on the 14th of June applied for leave to appeal this judgment as it could have a devastating effect on the parole system in South Africa.
In response to the above, I called for a Legal Services Seminar which took place in Baviaanspoort Correctional facility on 5 June 2017 to try and mitigate against the influx of excessive motion applications pertaining lifers parole consideration.
From that seminar which lasted for five days, we agreed on the following measures:
A database will be created which will contain, amongst others, details of all lifers in the system and dates when they will and have been considered and control measures in the database to ensure that lifers are considered for parole timeously;
Quality assurance at Head Office to ensure that profiles are ready to be considered by the NCCS/Minister;
Training in the regions and workshops to sharpen role player’s skills and knowledge to ensure that the standard of profiles submitted to Head Office is in line with relevant policies and the law;
Closer relations with the State Attorney to ensure that applications are properly and timeously attended to;
3. A revised parole system for South Africa
Currently, the Department has developed a position paper on parole administration in South Africa. This paper is intended to form a basis for discussion and consultation with all role-players and other interested parties on proposals with a view to develop an appropriate new parole system for the country. Furthermore, I must state that the new intended parole system will have a strong focus on the support to be provided to victims of crime as well as communities. A need has also been identified to provide support to parolees and as ex-offenders upon release.
Although the DCS is responsible to executing warrants issued by the courts, the eventual release and reintegration of offenders into the society can only be successful if the society is also involved to facilitate offenders back into communities. This can only be achieved if family, friends, and the community alike can provide support to offenders whilst in the correctional centre and also when they are in the system of community corrections.
This is the transformation of the country’s parole system and we call upon the public to study it and play an active role which will take us into a new jurisprudence (legal system) of parole.
I truly believe that we are making sound progress in terms of providing quality programmes to inmates and I am positive that the organizational restructuring project we have started will continue to transform correctional services for the benefit of all South Africans.
Lastly, let me take this opportunity and announce the retirement of Mr Zach Modise, as the National Commissioner at the end of August 2017 as he would have reached the age of retirement from public office. In the interim, Mr Modise will be finalising reports on a number of outstanding issues prior to his departure which I have raised with him in particular as had been requested by SCOPA at its meeting of 14 June 2017 which include in particular a progress report on measures taken to instill discipline within the department. This will go a long way towards reassuring public confidence in our correctional system and improve its performance of the department by stemming out irregularities and other forms of misconduct that have been widely publicized on various platforms.
I thank you.
Source: Government of South Africa