1 motivation for the amendment of the correctional services act, 111 of 1998 (correctional services...

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MOTIVATION FOR THE AMENDMENT OF THE CORRECTIONAL SERVICES ACT, 111 OF 1998

(CORRECTIONAL SERVICESAMENDMENT BILL, 2007)

DEPARTMENT OF CORRECTIONAL SERVICES (DCS)

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INTRODUCTIONINTRODUCTION

2005: Adoption of the White Paper on Corrections – 2005: Adoption of the White Paper on Corrections – emphasis on correction and rehabilitationemphasis on correction and rehabilitation

Constitution of the Republic of South Africa, 1996 – Constitution of the Republic of South Africa, 1996 – premise of the White Paper on Corrections, 2005premise of the White Paper on Corrections, 2005

Constitution provides for a detention system that is based Constitution provides for a detention system that is based on the Bill of Rightson the Bill of Rights

Bill of Rights defines a human rights environment within Bill of Rights defines a human rights environment within which the DCS must operatewhich the DCS must operate

White Paper on Corrections brings the alignment to the White Paper on Corrections brings the alignment to the constitutional imperatives provided by the Constitutionconstitutional imperatives provided by the Constitution

Also provided policy framework for departmental Also provided policy framework for departmental legislation and guidance for subordinate policy legislation and guidance for subordinate policy developmentdevelopment

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WHY ARE WEWHY ARE WE AMENDING THE CURRENT ACTAMENDING THE CURRENT ACT

To change specific concepts, definitions and references in To change specific concepts, definitions and references in order to align the Act to the White Paper on Corrections of order to align the Act to the White Paper on Corrections of South Africa, 2005; South Africa, 2005;

To enact specific practices in respect of administration of To enact specific practices in respect of administration of Correctional Centres to promote humane treatment of Correctional Centres to promote humane treatment of inmates contravening / transgressing matters of security, inmates contravening / transgressing matters of security, management of correctional centres, discipline, etc.management of correctional centres, discipline, etc.

To enable public participation in rehabilitation and re-To enable public participation in rehabilitation and re-integration of offenders into community.integration of offenders into community.

To legislate a framework in determination of parole in To legislate a framework in determination of parole in respect of certain categories of offenders. respect of certain categories of offenders.

To introduce compulsory participation in certain To introduce compulsory participation in certain programmes for offenders.programmes for offenders.

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WHAT IS COVERED IN THE PRESENTATIONWHAT IS COVERED IN THE PRESENTATION

-- Substantive amendments focusing on the following:Substantive amendments focusing on the following:

1.1. Community participation in rehabilitation and social re-Community participation in rehabilitation and social re-integration of offendersintegration of offenders

2.2. Incarcerated mothers with children in custody Incarcerated mothers with children in custody

3.3. Introduction of the elements of the offender rehabilitation Introduction of the elements of the offender rehabilitation pathpath

4.4. Humane treatment of inmatesHumane treatment of inmates

5.5. Improved administration of parole and Correctional Improved administration of parole and Correctional Supervision and Parole Board (CSPB)Supervision and Parole Board (CSPB)

6.6. Streamlining the functions of Judicial Inspectorate (To Streamlining the functions of Judicial Inspectorate (To enhance the monitoring of humane treatment of inmates in enhance the monitoring of humane treatment of inmates in correctional centres) correctional centres)

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1. COMMUNITY PARTICIPATION IN REHABILITATION 1. COMMUNITY PARTICIPATION IN REHABILITATION AND SOCIAL RE-INTEGRATION OF OFFENDERSAND SOCIAL RE-INTEGRATION OF OFFENDERS

Chapter 3 of the White Paper provides that correction is a Chapter 3 of the White Paper provides that correction is a societal responsibility.societal responsibility.

Chapter 13 promotes relationship between the DCS and Chapter 13 promotes relationship between the DCS and community-based organisations as inherent for successful community-based organisations as inherent for successful rehabilitation. rehabilitation.

The current Act limits community involvement to The current Act limits community involvement to communication to visits by spouse, partners and relatives.communication to visits by spouse, partners and relatives.

The Bill proposes in clause 13 (section 13) that the The Bill proposes in clause 13 (section 13) that the Commissioner may allow community organisations, non-Commissioner may allow community organisations, non-governmental organisations and religious organisations to governmental organisations and religious organisations to interact with inmates in order to facilitate the rehabilitation interact with inmates in order to facilitate the rehabilitation and re-integration into the community.and re-integration into the community.

Clauses 45 (section 50) and 53 (section 68) also extend the Clauses 45 (section 50) and 53 (section 68) also extend the objective and participation of volunteers in community objective and participation of volunteers in community corrections, respectively. corrections, respectively.

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2. INCARCERATED MOTHERS WITH CHILDREN2. INCARCERATED MOTHERS WITH CHILDREN

Before 1998 the DCS policy stipulated that mothers may Before 1998 the DCS policy stipulated that mothers may have children with them until the age of two years.have children with them until the age of two years.

The Act changed it to five years due to lack of resources to The Act changed it to five years due to lack of resources to place such children.place such children.

Theories based on research show critical period for Theories based on research show critical period for development is between the ages of six months and two to development is between the ages of six months and two to three years.three years.

International practice –International practice –

## UKUK : 9 – 18 months;: 9 – 18 months;## USAUSA : 12 – 18 months;: 12 – 18 months;## SwedenSweden : 1 year;: 1 year;## MaltaMalta : 1 year: 1 year

Viewpoint of the Department of Education is that critical Viewpoint of the Department of Education is that critical period for bonding and stimulation with mother is ideal up period for bonding and stimulation with mother is ideal up to two years. to two years.

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2. INCARCERATED MOTHERS WITH CHILDREN2. INCARCERATED MOTHERS WITH CHILDREN

Therefore if children are kept with their mothers in custody Therefore if children are kept with their mothers in custody for longer periods they will have difficulty relating to other for longer periods they will have difficulty relating to other people, e.g. siblings, male figures and other children. people, e.g. siblings, male figures and other children.

The Bill now provides for the age of two years (clause 20 – The Bill now provides for the age of two years (clause 20 – section 20).section 20).

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3. INTRODUCTION OF THE ELEMENTS OF THE 3. INTRODUCTION OF THE ELEMENTS OF THE OFFENDER REHABILITATION PATHOFFENDER REHABILITATION PATH

In order to conceptualize the White Paper, the offender In order to conceptualize the White Paper, the offender rehabilitation path was developed to spell out the interventions rehabilitation path was developed to spell out the interventions that should take place from admission until the release of an that should take place from admission until the release of an offender in order to ensure his or her rehabilitation.offender in order to ensure his or her rehabilitation.

The intention with rehabilitation is to curb re-offending and to The intention with rehabilitation is to curb re-offending and to contribute to the safety and security of the community. contribute to the safety and security of the community.

The current Act does not clearly provide for the rehabilitation path The current Act does not clearly provide for the rehabilitation path needed for the development of the offender whilst incarcerated.needed for the development of the offender whilst incarcerated.

The Bill introduces the following concepts in order to close the The Bill introduces the following concepts in order to close the gap in the current Act –gap in the current Act –

3.1 Unit management;3.1 Unit management;3.2 Correctional sentence plan; and3.2 Correctional sentence plan; and3.3 Personal development of the offender.3.3 Personal development of the offender.

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3. INTRODUCTION OF THE ELEMENTS / PRINCIPLES 3. INTRODUCTION OF THE ELEMENTS / PRINCIPLES

OF OFFENDER REHABILIATION…continuedOF OFFENDER REHABILIATION…continued 3.13.1 Unit ManagementUnit Management

Chapter 5 of the White Paper provides for application of Chapter 5 of the White Paper provides for application of elements, principles and objectives of unit management in elements, principles and objectives of unit management in the correctional centre.the correctional centre.

Unit management is identified as one of the best practices Unit management is identified as one of the best practices of managing correctional centres and inmates in the world. of managing correctional centres and inmates in the world.

The current Act does not provide for elements / principles The current Act does not provide for elements / principles of unit managementof unit management

Clause 35 (b) (section 37) introduces as per the Clause 35 (b) (section 37) introduces as per the requirement of the White Paper elements / principles of unit requirement of the White Paper elements / principles of unit management into the Act.management into the Act.

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3. INTRODUCTION OF THE ELEMENTS OF OFFENDER 3. INTRODUCTION OF THE ELEMENTS OF OFFENDER

REHABILIATION…continuedREHABILIATION…continued 3.23.2 Sentence PlanSentence Plan

Chapter 9 of the White Paper provides for the needs-based Chapter 9 of the White Paper provides for the needs-based correctional sentence plan.correctional sentence plan.

The current Act is vague about the sentence plan. The current Act is vague about the sentence plan.

The Bill seeks to clarify this and specify the elements to be The Bill seeks to clarify this and specify the elements to be covered in the correctional sentence plan. covered in the correctional sentence plan.

Clause 36 (b) (section 38 (1A)) compels the Case Management Clause 36 (b) (section 38 (1A)) compels the Case Management Committee to compile a correctional sentence plan in relation to Committee to compile a correctional sentence plan in relation to the offender’s future in the correctional centre.the offender’s future in the correctional centre.

It further provides that the offender’s correctional sentence plan It further provides that the offender’s correctional sentence plan must address each of the matters and needs as identified in the must address each of the matters and needs as identified in the risk assessment.risk assessment.

The intention is to correct offending behaviour and rehabilitate The intention is to correct offending behaviour and rehabilitate the offender in preparation for release back into the community.the offender in preparation for release back into the community.

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3. INTRODUCTION OF THE ELEMENTS OF OFFENDER 3. INTRODUCTION OF THE ELEMENTS OF OFFENDER

REHABILIATION…continuedREHABILIATION…continued 3.33.3 Personal DevelopmentPersonal Development

Chapter 9 of the White Paper provides for development which Chapter 9 of the White Paper provides for development which focuses on the life skills of offenders is aimed at realizing focuses on the life skills of offenders is aimed at realizing offender’s full potential in every aspect of his or her development.offender’s full potential in every aspect of his or her development.

The current Act does not clearly provide the purpose of skills The current Act does not clearly provide the purpose of skills development by offenders, and is also vague about development development by offenders, and is also vague about development and care programmes.and care programmes.

In this regard the Bill provides for market-related skills In this regard the Bill provides for market-related skills in order for in order for offenders to be gainfully employed in society upon their release.offenders to be gainfully employed in society upon their release.

Clause 38 (section 40(b)) covers this.Clause 38 (section 40(b)) covers this.

The Bill further provides for needs-based programmes (clause 39 The Bill further provides for needs-based programmes (clause 39 – section 41(1)).– section 41(1)).

In clause 24 (section 24(8)) the Bill provides that a penalty for In clause 24 (section 24(8)) the Bill provides that a penalty for serious or repeated infringements may be segregation – in order serious or repeated infringements may be segregation – in order to subject the inmate to undergo programmes aimed at correcting to subject the inmate to undergo programmes aimed at correcting behaviour. Also clause 30 (section 30(1)(g)) NB: This section also behaviour. Also clause 30 (section 30(1)(g)) NB: This section also covers unsentenced inmates.covers unsentenced inmates.

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4. MONITORING HUMANE TREATMENT OF INMATES4. MONITORING HUMANE TREATMENT OF INMATES

Constitution - section 35(2)(e) & (f) everyone detained, including Constitution - section 35(2)(e) & (f) everyone detained, including every sentenced prisoner, has the right to conditions of detention every sentenced prisoner, has the right to conditions of detention that are consistent with humane dignity.that are consistent with humane dignity.

Chapter 10 of the White Paper states that special attention should Chapter 10 of the White Paper states that special attention should be paid to the nature of the disciplinary procedures and be paid to the nature of the disciplinary procedures and punishment meted out. The scope for abuse of authority in the punishment meted out. The scope for abuse of authority in the correctional institution must be countered. correctional institution must be countered.

The current Act provides that solitary confinement may be meted The current Act provides that solitary confinement may be meted out as penalty to discipline offending behaviour by inmates out as penalty to discipline offending behaviour by inmates (section 24(5)(d)).(section 24(5)(d)).

The penalty in terms of section 24(5)(d) is now complemented by The penalty in terms of section 24(5)(d) is now complemented by the provisions of clause 24 – section 24(8) which introduces the provisions of clause 24 – section 24(8) which introduces programmes aiming at correcting behaviour whilst in segregation programmes aiming at correcting behaviour whilst in segregation (clause 30 – section 30(1)(g) . (clause 30 – section 30(1)(g) .

Furthermore, the current Act provides for the Head of Correctional Furthermore, the current Act provides for the Head of Correctional Centre to report the application of mechanical restraints in single Centre to report the application of mechanical restraints in single detention to the Area Commissioner and the Inspecting Judge detention to the Area Commissioner and the Inspecting Judge (section 31(4)).(section 31(4)).

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4. MONITORING HUMANE TREATMENT OF 4. MONITORING HUMANE TREATMENT OF INMATES…continuedINMATES…continued

In order to enhance the monitoring and avoid possible abuse, the In order to enhance the monitoring and avoid possible abuse, the Bill provides for the Head of the Correctional Centre to report the Bill provides for the Head of the Correctional Centre to report the application of mechanical restraints in single cells to the National application of mechanical restraints in single cells to the National Commissioner and the Inspecting Judge (clause 31 – section Commissioner and the Inspecting Judge (clause 31 – section 31(3)(d).31(3)(d).

In further enhancing the monitoring of humane treatment of In further enhancing the monitoring of humane treatment of inmates, the Bill removes the reporting duty of the Inspecting inmates, the Bill removes the reporting duty of the Inspecting Judge on corrupt and dishonest practices (clause 74 – section Judge on corrupt and dishonest practices (clause 74 – section 90(1)).90(1)).

The removal enhances the focus of the Inspecting Judge on The removal enhances the focus of the Inspecting Judge on matters related to human right issues.matters related to human right issues.

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5. IMPROVING ADMINISTRATION OF PAROLE 5. IMPROVING ADMINISTRATION OF PAROLE

SYSTEM….SYSTEM….

New concepts covered in the Bill on this New concepts covered in the Bill on this matter relates to the following –matter relates to the following –

5.15.1 Allowance for inmate to make oral Allowance for inmate to make oral representationrepresentation

5.2 5.2 Conditions of community correctionsConditions of community corrections

5.3 5.3 Incarceration frameworkIncarceration framework

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SYSTEM…. …continuedSYSTEM…. …continued

5.15.1 Allowance for inmate to make oral representationAllowance for inmate to make oral representation

Chapter 5 of the White Paper introduced principles of Chapter 5 of the White Paper introduced principles of restorative justice in correctional managementrestorative justice in correctional management

In line with the White Paper the current Act provides in In line with the White Paper the current Act provides in section 75(4) that the complainant / relative of the section 75(4) that the complainant / relative of the complainant may make written or oral representations to complainant may make written or oral representations to the CSPB.the CSPB.

The Bill now provides for the offender also to make oral The Bill now provides for the offender also to make oral representations to the CSPB (clause 59(d) – section 75(4A). representations to the CSPB (clause 59(d) – section 75(4A). This also in line with the requirements of the Constitution This also in line with the requirements of the Constitution (section 33) and the Promotion of Administrative Justice (section 33) and the Promotion of Administrative Justice Act, 2000. Act, 2000.

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SYSTEM…. …continuedSYSTEM…. …continued 5.2 5.2 Conditions of community correctionsConditions of community corrections

The White Paper provides for corrections as a societal The White Paper provides for corrections as a societal responsibility.responsibility.

Clause 47 - section 52(1)(b)(f) & (r) seeks to empower the Clause 47 - section 52(1)(b)(f) & (r) seeks to empower the CSPB to put conditions aimed at compelling the offender to CSPB to put conditions aimed at compelling the offender to participate in participate in correctioncorrection, development and , development and carecare programmes in the society.programmes in the society.

Clause 47 – section 52(1)( (r) of the Bill also makes Clause 47 – section 52(1)( (r) of the Bill also makes provision for such conditions as to suit the needs of the provision for such conditions as to suit the needs of the offender in order to facilitate his or her re-integration into offender in order to facilitate his or her re-integration into the community.the community.

The current Act provides in section 52(1)(a) that one of the The current Act provides in section 52(1)(a) that one of the conditions of community corrections may be placement conditions of community corrections may be placement under house detention.under house detention.

The Bill seeks to introduce a similar provision which is The Bill seeks to introduce a similar provision which is clearly a duplication since further conditions for house clearly a duplication since further conditions for house detention may be imposed by the CSPB.detention may be imposed by the CSPB.

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SYSTEM…. …continuedSYSTEM…. …continued 5.2 5.2 Conditions of community correctionsConditions of community corrections

Therefore the DCS recommends that the Portfolio Committee Therefore the DCS recommends that the Portfolio Committee omits this from the Bill.omits this from the Bill.

Section 52(1)(k) of the current Act provides as one of the Section 52(1)(k) of the current Act provides as one of the conditions the prohibition to use or abuse alcohol or drugs whilst conditions the prohibition to use or abuse alcohol or drugs whilst under community corrections.under community corrections.

The Bill has provided for the deletion of section 57(5) since this is The Bill has provided for the deletion of section 57(5) since this is already covered in section 52(1)(k).already covered in section 52(1)(k).

The Act was contradictory in that whilst it allowed for the use of The Act was contradictory in that whilst it allowed for the use of alcohol or drugs in section 57(5), in section 52(1)(k) there was alcohol or drugs in section 57(5), in section 52(1)(k) there was absolute prohibition.absolute prohibition.

To consolidate the two sections the Bill prohibits the abuse thereof, To consolidate the two sections the Bill prohibits the abuse thereof, which ensures that the process of supervision is not impaired.which ensures that the process of supervision is not impaired.

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SYSTEM…. …continuedSYSTEM…. …continued 5.35.3 Incarceration FrameworkIncarceration Framework

Traditionally and historically the executive had the power to Traditionally and historically the executive had the power to regulate parole.regulate parole.

Currently the judiciary can influence the administration of parole Currently the judiciary can influence the administration of parole by introducing non-parole periods.by introducing non-parole periods.

This position is also being criticized by our courts.This position is also being criticized by our courts.

Botha v State CaseBotha v State Case::

## “The function of a sentencing court is to determine the term of “The function of a sentencing court is to determine the term of imprisonment that a person, who has been convicted of an imprisonment that a person, who has been convicted of an offence should serve.offence should serve.

## A court has no control over the minimum period of the sentence A court has no control over the minimum period of the sentence that ought to be served by such a person. A recommendation of that ought to be served by such a person. A recommendation of the kind encountered here is an undesirable incursion into the the kind encountered here is an undesirable incursion into the domain of another arm of state, which is bound to cause tension domain of another arm of state, which is bound to cause tension between the judiciary and the executive.”between the judiciary and the executive.”

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In In S v NkosiS v Nkosi the Judge decided that the court has no control over the Judge decided that the court has no control over the minimum period of sentence to be served by an offender as the minimum period of sentence to be served by an offender as well as the release. well as the release.

## A court has no control over the minimum period of the sentence A court has no control over the minimum period of the sentence that ought to be served by such a person. A recommendation of that ought to be served by such a person. A recommendation of the kind encountered here is an undesirable incursion into the the kind encountered here is an undesirable incursion into the domain of another arm of state, which is bound to cause tension domain of another arm of state, which is bound to cause tension between the judiciary and the executive.”between the judiciary and the executive.”

## Furthermore, Courts are not entitled to prescribe to the executive Furthermore, Courts are not entitled to prescribe to the executive branch of government how long a convicted person should be branch of government how long a convicted person should be detained, thereby usurping the function of the executive. detained, thereby usurping the function of the executive.

The period served by an inmate should be consistent with the The period served by an inmate should be consistent with the established sentencing framework and the rehabilitation established sentencing framework and the rehabilitation objectives.objectives.

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In order to improve the administration of parole the Bill In order to improve the administration of parole the Bill introduces ‘the incarceration framework’ which replaces all the introduces ‘the incarceration framework’ which replaces all the minimum consideration periods in terms of the current Act.minimum consideration periods in terms of the current Act.

The incarceration framework allows the Minister, as an executive The incarceration framework allows the Minister, as an executive authority, in consultation with the National Council on authority, in consultation with the National Council on Correctional Services (NCCS) to determine these periods by Correctional Services (NCCS) to determine these periods by notice in the Gazette (clause 57 – section 73A).notice in the Gazette (clause 57 – section 73A).

This determination is subject to the following must –This determination is subject to the following must –

# Take cognizance of the seriousness of the offence;# Take cognizance of the seriousness of the offence;

# Be of general application to all offenders;# Be of general application to all offenders;

# Be consistently applied; and # Be consistently applied; and

# Provide for flexibility taking into account successful # Provide for flexibility taking into account successful achievements in terms of the correctional sentence plan.achievements in terms of the correctional sentence plan.

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STREAMLINE THE FUNCTIONS OF THE JUDICIAL STREAMLINE THE FUNCTIONS OF THE JUDICIAL

INSPECTORATEINSPECTORATE

The DCS does not intend to proceed with the amendments The DCS does not intend to proceed with the amendments as indicated in clauses 68 – 76 (sections 85-93) except for as indicated in clauses 68 – 76 (sections 85-93) except for those mentioned hereunder.those mentioned hereunder.

The current Act stipulates that the Inspecting Judge in The current Act stipulates that the Inspecting Judge in person is responsible for all administrative and staff person is responsible for all administrative and staff management functions.management functions.

South African Association of Personal Injury Lawyers v South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) BCL 77 CC (the Heath decision)Heath and Others 2001 (1) BCL 77 CC (the Heath decision)

In accordance with this decision the Judge should perform In accordance with this decision the Judge should perform judiciary functions and not executive duties.judiciary functions and not executive duties.

The Bill provides for the Chief Executive Officer to perform The Bill provides for the Chief Executive Officer to perform administrative and staff management functions (clause 73 administrative and staff management functions (clause 73 – section 89)– section 89)

The Bill further provides for the removal of the duty to The Bill further provides for the removal of the duty to report fraud and corruption from the Inspecting Judge.report fraud and corruption from the Inspecting Judge.

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Thank you

“An age of hope, a national effort for corrections, rehabilitation and social integration”

1 motivation for the amendment of the correctional services act, 111 of 1998 (correctional services...

Documents

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community participation

community organisations

communitybased organisations

correctional services

correctional supervision

successful rehabilitation

dcs policy