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FRIDAY, 20 MAY 2005
PROCEEDINGS OF EXTENDED PUBLIC COMMITTEE – OLD ASSEMBLY CHAMBER
Members of the Extended Public Committee met in the Old Assembly
Chamber at 10:04.
House Chairperson Mr G Q M Doidge, as Chairperson, took the Chair
and requested members to observe a moment of silence for prayers or
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS – see col 000.
Debate on Vote No 23 – Justice and Constitutional Development:
The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT:
Chairperson, hon members, the justice family, comrades and friends,
today it is exactly 9 years and 12 days since the citizens of this
country adopted our acclaimed Constitution. On 8 May 1996, the
people of South Africa, through their freely elected
representatives, adopted this nation’s founding document with a
pledge that -
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We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country;
Believe that South Africa belongs to all who live in it, united
in our diversity.
As we meet here today we proudly continue with an unwavering
commitment to that founding pledge that “South Africa belongs to all
who live in it, united in our diversity.” The transformation process
that we have embraced and our continuing efforts to ensure access
for all to justice are intended to fulfil this undertaking. This
commitment has, in the past 10 years of freedom, afforded an ever-
expanding mass of our people greater access to justice.
As we enter the second decade of our democracy, we are fortified by
the principles that underpin our Constitution and the Freedom
Charter when it boldly declares that: “The courts shall be
representative of all the people of South Africa.” These two
important beacons have charted the course for the way forward.
We are therefore emboldened to proceed confidently with our efforts
to transform the justice system. This will place it in a position to
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meet the needs of all the people of South Africa. Transformation is
a key national undertaking for which the Constitution provides a
blueprint for the fulfilment of a better life for all.
Turning to the issue of the transformation of the judiciary, as
evidenced by the recent Justice Colloquium, government and the
judiciary are engaged in meaningful dialogue about proposed
legislation to improve the functioning, accessibility and
transformation of the justice system.
A package of six Bills, which have a direct bearing on important
aspects relating to the judiciary, were discussed at the recent
Justice Colloquium. The six Bills are: the Constitution Amendment
Bill, dealing with our superior courts; the Superior Courts Bill
itself; the South African Justice Training College Bill; and three
Bills dealing with disciplinary mechanisms in respect of members of
The colloquium enabled us to gather diverse and invaluable views and
comments that we will consider. I am also looking forward to
receiving further inputs from the judiciary on the policy aspects
relating to the Bills under discussion for consideration.
Discussions in respect of the rationalisation of courts, judicial
training and complaints mechanisms have taken place since 1994.
Legislation in this regard has been considered for the past few
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years. I intend to submit these Bills to Cabinet by July for
consideration by Parliament during its last session of this year. I
am confident that we will find a workable solution to address these
We are constantly reviewing and refining our legislation. We will
continue to make changes where necessary in order to ensure a
greater positive impact on the lives of the people that are affected
by these laws.
In August last year I was moved to apologise to women of this
country regarding the ironic situation we found ourselves in, namely
that we were celebrating a decade of freedom, and yet we still have
on our Statute Book outdated and discriminatory pieces of
legislation such as the Black Administration Act.
I am therefore pleased to report that legislation to repeal the
Black Administration Act and to bring the customary law of
succession in line with the Constitution is being finalised. I hope
to table these two Bills in Parliament during the second half of the
parliamentary programme of this year. The same could be said in
respect of a draft Bill that is intended to address the concerns
raised by the Constitutional Court in the case involving the
attachment of low-cost housing.
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The Child Justice Bill and the Criminal Law (Sexual Offences)
Amendment Bill are pending before the portfolio committee and I hope
to see deliberations on them resume in the very near future.
We are working on a strategy to look at transformation of the legal
sector and to engage the sector in respect of the development of a
legal services charter.
Our priorities for the 2005 financial year are: the transformation
of the judiciary, including the alignment of the Judicial Service
Commission and the Magistrates’ Commission; the review of the
criminal justice system; the improvement and monitoring of court
capacity and performance; and the transformation of the Master’s
The department’s Medium-Term Expenditure Framework baseline
allocation grows from R5 072 million in 2005-06 to R5 598 million in
2006-07, to R6 046 million in 2007-08. This equates to an average
increase of 9,2% over the MTEF period.
We are currently engaging expertise to quantify the costs of
services of the administration of justice. I am certain that the
additional allocations received over the MTEF period will go a long
way in addressing this personnel budget shortfall. We have already
received some additional allocations from National Treasury and this
will be used to assist with the following priorities for the next
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three years: service delivery and integration; modernising the
justice system; effective and efficient management of cases through
the justice chain; transforming the justice system; and courts
Other aspects also additionally funded include: lay assessors; the
rehabilitation of courts; the court nerve centre; the victim support
programme; specialised courts; the filling of court vacancies; the
appointment of magistrates; court personnel for new High Courts; and
increased witness fees.
Our vision is to meet the challenge of creating a stable society in
which all communities are able to live in peace, safety and
security. To achieve this, it is critical that the judicial system
is accessible to all; and this can partly be achieved through the
provision of adequate infrastructure. This is receiving urgent
attention on all levels. Interactions with the Department of Public
Works continue to result in the improvement of service delivery
regarding maintenance of buildings and the building of new
The modernisation of court security infrastructure remains a
challenge. In order to address the identified deficiencies in a
structural and effective manner, an integrated approach with the
security cluster has been adopted.
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We have piloted Re Aga Boswa [We Are Rebuilding] in KwaZulu-Natal.
The results look good and we are considering rolling out to the rest
of the country.
The High Courts managed a conviction rate of 86% through a greater
improvement in case-flow efficiency, court performance and effective
monitoring. The district courts managed a conviction rate averaging
87%, exceeding the target of 85% for the last year. The district
courts have also managed to attain their target in reducing case
cycles. The set cycle times for district court cases prescribe that
90% of all cases should not be on the roll for longer than six
Regional courts, on the other hand, realised a conviction rate of
75%. The number of finalised cases by the end of January 2005
represented a 15% increase as compared to the previous year.
The department has gradually established a range of specialised
courts to deal with specialised and sensitive cases related to
sexual offences, family and domestic cases, commercial crime and
community courts. While these courts have shown significant progress
in comparison to the other mainstream courts, the aim here is not to
see a proliferation of specialised courts that are better resourced
than the mainstream courts. The department has therefore initiated a
review of the impact, effectiveness and sustainability of
specialised courts within the judicial system.
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To date, the status of some of the specialised courts is as follows.
With regard to sexual offences courts, 54 sexual offences courts,
with a conviction rate of 62%, have been established and 26 of the
54 sexual offences courts are blueprint compliant, and attention is
being paid to provide the infrastructure to make the remainder
blueprint compliant. Permanent positions will be created in
conjunction with the Magistrates’ Commission to capacitate the
approved sexual offences courts.
With regard to equality courts, there are presently 220 designated
equality courts throughout the country. On 13 June 2003, 60
magistrates’ courts in all 13 administrative regions were designated
as equality courts. An additional 150 courts were designated as
equality courts on 26 March.
As far as the High Courts are concerned, section 16(1)(a) of the
Promotion of Equality and Prevention of Unfair Discrimination Act,
Act 4 of 2000, provides that every High Court is an equality court
for its area of jurisdiction.
Infrastructure is being provided on a continuous basis as new courts
are established. More than 800 magistrates have been trained in
equality matters. More magistrates and court staff will receive
training so that more courts are designated as equality courts to
increase access. Successful public awareness campaigns have been
launched in various areas of the country.
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With regard to commercial crime courts, these are set up to deal
with serious commercial crime, as members know, in a more effective
manner. We have now established further commercial crime courts in
Durban and Port Elizabeth to add to the already existing courts in
Johannesburg and Pretoria.
We launched the Durban Commercial Crime Court in November 2004. It
is a pleasure to note that these commercial crime courts have gained
business sector support and international acclaim as a best practice
model. Excuse me - it’s a season for sniffs. [Interjections.] Thank
you, Chairperson, for indulging me.
With regard to community courts, in line with our President’s
directive during the state of the nation address in February, we
will speed up the establishment of community courts beyond the pilot
projects. By the end of this financial year the department will have
established two community courts per province, which will have
flexible hours of operation compared to the normal courts, such as
the Hatfield Community Court.
The business community and other formations of civil society
continue to contribute immensely to the establishment and
sustainability of these courts. There is, at present, a total of 13
community courts, of which four are fully operational and have been
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With regard to small claims courts, we are also proud to announce
that we have completed a national plan of action to transform and
re-engineer small claims courts throughout South Africa. This is
meant to ensure greater access to civil justice. We have formed a
dynamic partnership with the Swiss Agency for Development and Co-
operation, the SA Law Society and tertiary institutions in order to
pursue our blueprint for small claims courts.
The Master’s Office, as we all know, is important in the social and
economic lives of our people. Each year the value of the estates
under the supervision of the Masters amounts to approximately R18
billion, which includes about R2,5 billion in the Guardians’ Fund.
It is essential that the Masters’ Offices are transformed and
restructured to ensure that those who are entitled to this service
receive it without unnecessary delays. This will not only stimulate
our economy, but ensure that those who need support receive it
promptly. Ways of ensuring that both deceased and insolvent estates
are promptly wound up must be explored.
The ability of the Masters’ Offices to render an efficient and
effective public service in the national interest must be enhanced.
On 20 July 2004, pursuant to widespread allegations of corruption
within the liquidation industry and general inefficiency in the
Masters’ Offices, I appointed a committee of inquiry. The
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committee, co-chaired by Adv Seth Nthai and Adv Lindiwe Nkosi-
Thomas, was tasked with inquiring into and investigating the
administrative system relating to the appointment of liquidators,
and to identify practices which encourage undesirable or illegal
I’m pleased to report that the committee has delivered its final
report and has provided me with a comprehensive overview of the
problems in the Masters’ Offices and in the liquidation industry.
The report also contains recommendations, which have been
considered by officials from my department, the Department of Trade
and Industry and Treasury.
I’m in the process of reporting to Cabinet on the committee’s
findings and on the recommendations made by both the committee and
the departmental officials. The report will assist us to achieve
our objectives in the Masters’ Offices.
Although many allegations of corruption were made, the committee
received very few substantiated allegations. In appropriate cases,
the allegations were referred to the authorities for investigation.
We shall continue our efforts to eradicate corruption completely.
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The National Prosecuting Authority has been a commendable champion
of its own vision statement, that is: “Justice in our society, so
that people can live in freedom and security.”
The NPA has achieved numerous successes in its short existence, and
I hereby wish to acknowledge the excellent contribution of Adv
Bulelani Ngcuka in ensuring that the element of professionalism was
Through the growth of the NPA we have seen the emergence of the
Sexual Offences and Community Affairs Unit, the Directorate of
Special Operations, the Specialised Commercial Crime Unit, the
Priority Crimes Litigation Unit, the Integrity Management Unit and
the Asset Forfeiture Unit. We eagerly await the success of Project
X, which is the NPA’s plan for transformation.
The National Prosecuting Authority’s Directorate of Special
Operations continues to position itself as an elite crime-fighting
agency through the exploitation of key partnerships and co-
operations. Some of the operational achievements of the DSO include
a conviction rate of 93% for the year ending 2005. This is well
over the 80% target for the year. The value of the proceeds of
crime for the year ending 2005 stands at R255,7 million.
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Many issues relating to asset forfeiture have been clarified in the
120 judgments to date. While the success rate for cases brought to
court in the four years to April 2003 was low, this changed
dramatically in the 2003-04 financial year when the unit won 75% of
judgments. This was achieved against a target of 60%. In the last
financial year the unit achieved a success rate of 64%. To further
enhance the unit’s performance, a number of areas have been
identified where relevant legislation will have to be strengthened
We have identified modernisation as one of our strategic
objectives. The department has conducted intensive planning and
preparations over the past few years towards the modernisation of
the department and the services it renders. The goal is to ensure
that we are able to deliver justice services in a simpler, better,
faster and more cost-effective manner.
Critical to our modernisation programme are our e-Justice
programme, the human resource development programme and various
projects designed to improve our financial management. Significant
progress has already been made. Five years ago there were no more
than 200 users, who were provided with computers and Internet
connectivity. This year the department completed a major exercise
providing nearly 10 000 judges, magistrates, prosecutors and
administrative personnel with such equipment. This has placed
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within easy reach of judges, magistrates and prosecutors vital
The Legal Aid Board has completed the roll-out of national
infrastructure of four regional offices, 57 justice centres and 35
satellite offices employing more than 1 500 staff, of whom more
than 1 000 are legal professionals. The board continues to provide
legal assistance to the indigent, in accordance with the
Constitution and other legislative requirements, through the system
of in-house lawyers from its justice centres and also through
outsourcing to private lawyers.
We have recently successfully completed phase 1 of the sheriffs’
transformation programme. The Sheriffs Amendment Bill is a priority
which is aimed at accelerating representivity within the
profession, as well as enhancing accountability.
Last year the department obtained, for the first time ever, an
unqualified audit on its Vote account in respect of the 2003-04
financial year. This was an exciting moment because it had never
happened in the history of the department. This major achievement
was made possible by the commitment and dedication of the former
director-general Adv Vusi Pikoli and the CFO Mr Alan Mckenzie - I
can see that they are sitting in the public gallery - and indeed
all the other staff [Applause.] For this, I salute and thank them.
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Now, almost a year into my tenure as Minister, I can favourably
report that we continue to make significant progress with the
clearance of long-outstanding suspense accounts. A feasibility
study is being conducted on the management of monies in trust and
recommendations are eagerly awaited. The challenges that we face
are complex and require a measured but determined approach.
I wish to applaud the contribution of our outgoing Chief Justice
Arthur Chaskalson. His legacy will be indelible in the annals of
our constitutional democracy. May I also welcome our new Chief
Justice Pius Langa, and hereby pledge our support and co-operation
to these deserving advocates of constitutionalism and human rights.
I also wish to thank Adv Vusi Pikoli, now National Director of
Public Prosecutions, for his excellent service as Director-General
for the Department of Justice and Constitutional Development. At
the same time, I wish to welcome Dr Khotso De Wee - please meet the
people in the House - our new chief operating officer [Applause.]
I also wish to welcome our new director-general, Adv Menzi
Simelane, who will commence duty on 1 June. [Applause.] We
congratulate him on his appointment and eagerly anticipate his
commencement. A special thanks to our acting director-general, Ms
Jacqui Ngeva, for her commitment and contribution over these past
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In conclusion, I wish to thank everyone who has worked in and with
the department over the years. May I say a very special thank you
to my comrade and Deputy Minister, Johnny de Lange, Fatima, the
chairperson of the portfolio committee, and members of the
portfolio committee for outstanding work. Thank you as well to
Judge Presidents, the judiciary, the leaders and the members of the
magistracy, chairpersons of the Chapter 9 institutions, the Legal
Aid Board, and all civil society. May I also greet our great
ambassadors, the Ministers of Justice.
As custodians of the Constitution, we shall strive, ladies and
gentlemen, to entrench its value system in every aspect of South
African society, in the spirit of transformation and the
realisation of our constitutional democracy. Justice belongs to all
the people of South Africa. I thank you. [Applause.]
Ms F I CHOHAN-KHOTA: Chairperson, Minister, Deputy Minister, the
Public Protector - who is exercising his independence from the
department right through today - and I also want to recognise some
of the leadership of our magistracy who I see are present with us
today, don’t believe what you read in the papers about how we feel
about the judiciary.
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Let me immediately congratulate Dr De Wee on his appointment as CEO,
as well as Adv Simelane, and also take this opportunity to
congratulate the acting director-general on a job well done.
On the occasion of this debate I think it’s up to us to remember
that it’s really the eve of the retirement of the Chief Justice. We
have had occasion in the portfolio committee to bid farewell to him
at a lunch on Wednesday and I would reserve any further tributes in
this regard until Parliament formally pays tribute to him in the
House in the next few days.
I proudly support this Justice Vote on behalf of the ANC. Within our
justice system is a conduit incorporating many different role-
players in the justice family, such as the institutions we have
taken inputs from during our hearings in the last while, as well as
those role-players in the extended cluster of Safety and Security,
Correctional Services, Social Development, Home Affairs, Foreign
Affairs and Education. It is often at this level that more co-
operation and joint planning is paramount, particularly with regard
to Safety and Security, Justice and Correctional Services.
To quote from a report presented to the portfolio committee by the
NPA, for instance:
“The establishment of the SAPS is going to be expanded by 25%.
The aim is to have an establishment of approximately 200 000
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members within the next five years compared to the establishment
of the NPA of 2 400 members. Currently the ratio between police
officers and prosecutors is 1:67, ie one prosecutor to 67 police
officers. Within five years this figure will increase to 1:83.
The maths is staggering if each of the 50 000 members - new recruits
- submits just 10 triable cases per annum. This will increase the
incoming case load by 500 000 cases. Our courts already run backlogs
on average, of 151 cases per court in the district courts, 107 cases
per court in regional courts and 139 criminal cases per court in the
High Courts. This translates into a total current backlog of just
under 204 000 cases counting only the district and regional courts.
The implications of this must be factored into the rightsizing
exercise currently under way in the form of the task team that you
have already spoken about today, Minister.
If the average conviction rates remain as they are, and the most
conservative estimate at the moment is that we are achieving a
conviction rate of 70%, this will put the number of projected
convictions on the mooted 500 000 new cases at 350 000 assuming just
10% of those result in jail terms. We are looking at approximately
35 000 new prisoners per year in the next six years.
As this recruitment of police officers unfolds we can safely predict
a gradual increase in the case backlogs in our courts, an increase
in the case cycle time and mostly likely an increase in the
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awaiting-trial population, all of which pose major challenges for
the cluster as a whole and planning has to start now.
The Minister for Correctional Services, echoed by Judge Fagan and
others, laments the fact that our prisons lack certain basic
facilities and are simply overwhelmed by the sheer numbers of
prisoners. I am personally of the view that the solution to this is
to be found not only in a single cure, such as has been suggested by
some, namely doing away with the minimum sentences legislation which
incidentally, Minister, was passed by this committee and challenged
not once, but on two separate occasions in the Constitutional Court
and passed constitutional muster on both occasions. So it shouldn’t
surprise you that we are in the habit of passing legislation that
the judges don’t like, but what we don’t do is to pass laws that are
unconstitutional. And I think that’s an important difference that we
have to make. But I digress.
The solution to overcrowding in our prisons lies in a multipronged
approach that must include a massive improvement in the manner in
which our bail laws are applied in practice in order to reduce the
awaiting-trial population. The creation of a viable selection of
alternative sentencing mechanisms is absolutely vital. Proper and
more efficient application of the parole laws becomes a very big
factor in this whole chain.
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We may even need better and more equipped prisons, and if we really
want to make an impact on recidivism, effective rehabilitation
programmes have to be introduced in our prisons. The most effective
remedy, of course, is for the prevailing culture of criminal
behaviour to be curbed through successful campaigns in this vein.
On the micro level much still needs to be done. In this regard we
have noted with much appreciation and have welcomed the envisaged
criminal justice review process that you have spoken about. Much of
what presents as challenges relates to the lack of efficiencies in
our courts. Complaints by court users are often directed at the
number of postponements people have to endure prior to cases being
ready for trial. Postponements are particularly irksome when an
accused is remanded in custody pending trial. The NPA has set itself
a target that requires 75% of all cases to be completed within six
months in the regional courts. They have managed to record a success
rate of 60% but simply this means that 40% of all regional court
cases go on for between 6 and 12 months.
Figures for the High Courts indicate bigger problems. They indicate
that periods prior to cases appearing in the High Courts differ from
province to province. In the worst case it takes a matter up to
eight months to be transferred for finalisation from the lower
courts to the High Courts.
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The date to next appearance also differs tremendously from province
to province with a delay of 12 months to next appearance, and not
finalisation. And that is the worst-case scenario and this is
something that we really, really need to pay close attention to. It
must be remembered that it is in these courts – that is the regional
courts and the High Courts and not the district courts that have a
10-day finalisation target - that people are most likely to be
awaiting trial in correctional facilities. Much more attention must
be given in this regard.
The NPA records that the most prevalent reason for postponements in
the 11 months to November 2004 remains further investigations to be
conducted by the police. Close on the heels of this is the request
for legal representation by the accused. On the matter of legal aid,
equally, the matter of ensuring that people are legally represented
in matters where substantial injustice would otherwise occur could,
with the right mechanisms, such as case planners or organisers, save
valuable court time which may be better spent elsewhere.
The improved use of plea bargaining for lesser offences is another
area for investigation, particularly when the accused is represented
at an early enough stage. The legal aid aspect of our deliberations
will be more fully dealt with by the hon J B Sibanyoni. Suffice it
for me to say that much has to be done in relation to improving the
public defender system to ensure that an adequately experienced and
capable legal defence is provided by the state to accused people.
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The high conviction rates of the NPA mark a great measure of success
for the NPA, which only a few years ago registered conviction rates
in district courts at about 40%. While we celebrate the achievements
we must pause to consider: What of the public defender system?
It may of course be correct that there is a natural sifting process
that pertains in the criminal justice system that only winnable
cases reach our courts. But this is by no means trite in our
country, particularly given our peculiar history. A better, more
resourced, more proactive public defender system is a matter for
more discourse and planning. The fact that the Legal Aid Board
spends some of its resources on civil matters also requires further
thought and policy.
We have raised the spectre of the issue of awaiting-trial prisoners
who require more ongoing legal representation, as well as the sad
phenomenon of children who languish in our prisons robbed of not
only their liberty, but their very formative years. When weighed
against this consideration one is inclined to be unsympathetic to
the role the Legal Aid Board has assumed for itself in dealing with
civil matters including divorce matters. The matter must be looked
at holistically and with some measure of urgency by the department.
On the matter of sexual offences courts, last year during the budget
hearings we highlighted the serious disparity between convictions in
the sexual offences courts and those in what we call ordinary
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regional courts. This still pertains today. The unwelcome face of
sexual offences, particularly against women and children has become
a significant, if not an unfortunate feature of our court rolls. The
NPA reveals that 25% of all cases in the 11 months to November 2004
were sexual offences matters.
Sexual offences courts must no longer be treated as appendages to
normal courts by our magistracy and our judges. The experiences of
the specialised sexual offences courts may in some cases be easily
and inexpensively replicated in our so-called normal courts. It
merely requires integrated management practices and co-operation on
the part of the role-players in the cluster, as well as
incorporating community-based organisations. We agree, Minister,
that sexual offences courts must be more integrated into our
A very, very disturbing trend is beginning to emerge from the
experiences of these specialised courts. It is increasingly being
reported that perpetrators of sexual offences are children of
school-going age. This was reported to the portfolio committee
during our visit a few years ago to the Protea court in Soweto where
there are currently four dedicated sexual offences courts with an
outstanding roll, at the end of January 2005, of 759 cases. Research
conducted over a specific period by the NPA indicated during that
time that some 70% of all the cases of the Witwatersrand regional
courts were juvenile or gang-rape cases. We have asked the Sexual
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Offences and Community Affairs, or Soca, Unit of the NPA to monitor
this phenomenon and report back to us in this regard. We are really
Coming to court productivity, while we rightsize we must also use
our courts optimally. I am not sure what to make of the four hours
46 minutes, including time taken to deliver judgement that we see
now recorded as greatly improved times of usage of our courts. I can
assure you, Minister, that MPs work far longer than four hours 46
In this regard, however, we need scientific data and analysis to
understand and derive conclusions. While we understand that the
delivery of justice is not an exact science there is much room for
acceptable standards of assessment and analysis. We welcome the
initiative of the department in introducing the court nerve centre
and we hope that it will facilitate better forward planning and
identify trends prevailing in our courts.
The Chief Justice yet again raised the matter of underfunding of our
courts when he addressed us on Wednesday. It is correct that the
underfunding of the personnel budget is most harshly felt at our
courts. In all constitutional democracies around the world courts
give daily expression to the rights and liberties of citizens and
deliver justice to them.
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In the 10 years since the advent of democracy there has never been
an attempt to rightsize the budget to meet the challenges of our new
rights-based state. It has taken this long to amalgamate the 11
departments of justice into a single entity and of course achieve
the unqualified audit report last year.
This rightsizing exercise will, in a sense, mark the beginning of a
new era for the department. In doing this we must take a deep look
into the future at what kind of courts, what kind of facilities,
what kind of staff components are needed in the long term to fulfil
the vision of a better, more efficient system for delivery. It is
imperative that we look forward to the challenges ahead and our own
aspirations during this time.
Any rightsizing exercise based merely on current shortfalls will be
an exercise that will bring short-lived results. We look forward to
hearing about these important developments in due course from the
Finally, let me say that while this debate takes place under the
spectre of a controversy that has arisen around the independence of
the judiciary, there should be no doubt about the commitment of the
ANC and this committee to the principles of our Constitution. The
idea of separation of powers is one embraced by us in its purest
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We are, however, a nation in the making. No ideal model exists in
the world on the matter of institutional independence. We as the
legislature have a responsibility to our nation to raise difficult
questions and these matters shouldn’t raise accusations of thwarting
Judges and others should engage and fully motivate why they have
certain preferences and how these preferences assist us in building
the society we dream of. I say a society we dream of because our
society is built on a dream of a people: a people who in Kliptown 50
years ago began constructing the idea of our society that we are
building today; who on that day 50 years ago, despite being harassed
by the apartheid police, spoke of forgiveness; who, despite being
banned and detained without trial, spoke and sang of freedom; who
despite suffering torture and other indignities were stubborn in
their quest for fraternity and nationhood.
It is for them and from them that we are proud that in a world at
such odds with itself in this little place on the tip of Africa a
light of hope shines for liberty, guiding all of humanity to a
better way, a better life for all. Thank you. [Applause.]
Mrs S M CAMERER: Chairperson, my Whips would prefer me to stand.
This is not an attempt to intimidate the ruling party. The new
ministerial team at the department has now had an opportunity to
consolidate their position and to put their imprint on this
EPD 20 MAY 2005 PAGE:27 of 180
important budget. The name of the game is transformation of the
department and of the judiciary.
It is the outgoing director-general and new head of the NPA, Adv
Vusi Pikoli, who told us during the briefings that not enough has
been done to reduce crime and invest confidence in the justice
system. The main reason for this is substantial underresourcing of
the department with unfunded priorities amounting to R2,6 billion.
Without addressing this huge shortfall in funding for the
department’s priorities the Minister is unlikely to achieve anything
substantial in terms of transformation, as many of the
transformational items are on the unfunded list. Nevertheless,
progress has been made, and the DA will continue to support the
department’s efforts to achieve access to justice for all, though
there are aspects that give us cause for concern, which I will refer
In this debate, however, it is very difficult to focus exclusively
on the budget, when there are so many important and fundamental
issues relating to the department, some of which will only be
reflected in future budgets, which are of great interest and concern
to the judiciary, the legal fraternity, the opposition parties and
of course the public at large.
Firstly, we have the shake-up at the top of the judiciary and the
appointment of Judge Pius Langa as our new Chief Justice and Judge
EPD 20 MAY 2005 PAGE:28 of 180
Dikgang Moseneke as Deputy Chief Justice designate. The DA can only
congratulate the President on these excellent appointments, and we
also offer our sincere congratulations to these two gentlemen. We
have faith that they will prove to be outstanding leaders of the
Everything that Judge Puis Langa has said since his appointment has
tended to justify that faith; from his commitment in his interview
with the Judicial Service Commission to maintaining the stability of
the judiciary, to his laudable, outspoken position that judges
should control the system of judicial education in keeping with the
independence of the judiciary, and that any structure for
disciplining judges must accommodate both independence and
transparency of process.
Judge Langa has made it clear that he takes his cue from the
Constitution, whether it is the issue of the independence of the
judiciary, the transformation thereof, or even property rights, for
Thirdly, at the same time we have to say goodbye to our present
Chief Justice, Arthur Chaskalson, a brilliant jurist of principle,
dedicated to excellence. The DA believes that Arthur Chaskalson has
made an immeasurable contribution to the development of our law and,
in particular, as head of our Constitutional Court for 10 years, to
EPD 20 MAY 2005 PAGE:29 of 180
our constitutional jurisprudence, and we wish him well in his
I would also like to express my appreciation to Adv Pikoli on his
work as director-general, and wish him well in his new and difficult
task as head of the NPA. We also have a new management for the
department and I would like to congratulate the new director-general
designate, Adv Menzi Simelane, and the new CEO, Dr Khotso De Wee, on
their appointments, and wish them well.
The department is dealing with a number of big issues, like the
issue of racism and sexism in the judiciary and the legal
profession, which we believe the Minister has dealt with in an
exemplary manner by asking the Chief Justice to handle the matter.
This will be dealt with by my colleague in more detail.
Permeating the debate around the department and the judiciary is the
huge issue of transformation, now inextricably linked to the
controversial draft Bills revealed at the recent judges’ colloquium.
I would like to make it clear that the DA supports transformation of
the judiciary in terms of the imperatives set out in section 174(2)
of our Constitution.
The Judicial Service Commission, of which I’m a member, has been
guided by that section to try and achieve a judiciary that reflects
broadly the social and gender composition of South Africa.
EPD 20 MAY 2005 PAGE:30 of 180
Appropriately, 89% of our new appointments to the Bench have been
black. While the JSC has had some success, so that now over 40% of
all judges are black, the DA also agrees that more must be done.
A lot has been said and written about the transformation Bills
recently, and I would just like to summarise the DA’s position. The
DA supports training for judges as a way of helping to fast-track
the appointment of more women and more black people to the
judiciary. We support a more structured disciplinary process to
ensure accountability, as we recognise that the current system,
where there is nothing between a mild ticking-off by the Judicial
Service Commission and impeachment by Parliament, is not adequate.
We support the rationalisation of the courts, better management
structures and the appointment of court managers, as envisaged in
the Superior Courts Bill. In fact, we support a lot of what is in
However, we agree with the Chief Justice and his designated
successor – indeed, it is a position adopted by the entire
judiciary, according to the Chief Justice, as well as the academics
and legal commentators - that the attempt in those Bills to amend
the Constitution and the law, so as to take away responsibility for
the courts from the Chief Justice and give it to a politician, the
Minister, and to give control over the rules of court and training
of judges to the Minister and the department undermines the
EPD 20 MAY 2005 PAGE:31 of 180
independence of the judiciary, which is one of the cornerstones of
our constitutional democracy.
We agree with the Chief Justice when he stresses that both
institutional and substantive independence are essential. Democratic
constitutions require a clear separation of powers between the
legislature, the executive and the judiciary. A blurring of these
functions is the first step towards authoritarian rule and leads to
the sort of executive excesses experienced under apartheid.
If anyone doubts the need for clear blue water between the executive
and the judiciary, they need only read today’s Mail & Guardian in
which the governing party’s excesses have been exposed. Allegations
that a parastatal used taxpayers’ money to fund the ruling party’s
election campaign . . . [Interjections.] . . . to the tune of R11
million - this was allegedly done through the notorious ANC-
controlled BEE company - seem to be confirmed in bank records and
Exposure of corruption at all levels of government is a daily event
in South Africa. It is only the size and the brazen nature of this
example that induces a sense of shock. If the judiciary is in bed
with the executive, there will be no check on government corruption.
If their zeal to transform leads the Minister and her advisers to
try to tailor the Constitution to their legislation, then this is
clearly the wrong way around. The Minister knows that, as, with the
EPD 20 MAY 2005 PAGE:32 of 180
rest of the judiciary, Constitutional Court judges have given this
proposal the thumbs down.
She has said that she still has an open mind on the matter, and the
DA appeals to her to reconsider this aspect and not to drive the
issue towards a constitutional crisis. As the Chief Justice told the
committee on Wednesday: Nothing could be worse than litigation over
the constitutionality of laws affecting the judiciary.
The DA also has some anxiety over public statements made by the
Minister’s special adviser on transformation, Prof Shadrack Gutto,
because he was publicly ticked off by the usually reticent Chief
Justice when he wrote in the Mail & Guardian recently that Prof
Gutto’s suggestion that the judiciary be subject to review, as are
other branches of state, is inconsistent with the principle of the
separation of powers and the independence of the judiciary.
Professor Gutto has a long and impressive CV, but this sort of
statement makes him sound like a stranger to our constitutional
principles and raises questions as to his suitability for this task.
To add to the department’s problems, a cloud of uncertainty hangs
over the future of the Scorpions, hailed by the President as the new
pride of South Africa when he launched the elite crime-fighting unit
on 1 September 1999 in response to an outcry about the crime wave
during the 1999 elections. The fact that this highly successful
prosecution-led investigating unit has been involved in the
EPD 20 MAY 2005 PAGE:33 of 180
prosecutions of ANC luminaries like Winnie Mandela, Tony Yengeni,
Schabir Schaik and Travelgate MPs has made the Scorpions
increasingly controversial in the ANC eyes, apparently resulting in
suggestions by SAPS boss, Jackie Selebi, that they should be reigned
in and become part of the police. [Interjections.]
The ministerial committee established, at last, to iron out any
problems which might arise between the police and the prosecution
over the operations of the Scorpions, could apparently agree on
nothing but the appointment of a commission to inquire into whether
the Scorpions should remain where they are or be transferred to the
police. Clearly, the ANC is divided on the issue.
The DA believes that on the whole the Scorpions have been quite
successful, and we will be making a submission to Judge C C Kampepe
in this regard.
The National Prosecuting Authority, of which the Scorpions are a
unit, also has other problems. A number of top NPA officials are
being investigated for alleged criminal offences, and it is
experiencing a very high staff turnover, particularly because of low
morale in the wake of the departure of Adv Pikoli’s predecessor, Adv
Ngcuka, with over 320 vacant posts.
Now the NPA eats up R1,2 billion, 20% of the Justice budget. While
it delivers improving conviction rates, as indicated by our
EPD 20 MAY 2005 PAGE:34 of 180
chairperson, and some impressive projects such as the 200 top
criminals project and community courts, these are also stymied by
being R200 million underfunded this year.
Prosecutors are the backbone of criminal justice, and they are up in
arms because salary and notch increases, promised to them four years
ago, have shamelessly still not been budgeted for, let alone paid.
The department is still starved of resources and it is sad to see
Justice’s share of national spending on a steady decline from 1,6%
in 2001 to 1,5% today and for the foreseeable future. Thank you.
[Time expired.] [Applause.]
Mr L K JOUBERT: Chairperson, hon members, the IFP supports the
Budget Vote but with reservations, as I will point out. However,
before I deal with the reservations, I wish to join the previous
speakers in expressing good wishes and thanking . . .
The HOUSE CHAIRPERSON (Mr G Q M Doidge): Order! Can I just rectify
something. You need the permission of the Chair to address the House
Mr W P DOMAN: He is young enough to stand.
EPD 20 MAY 2005 PAGE:35 of 180
The HOUSE CHAIRPERSON (Mr G Q M Doidge): Order! I thought Whips were
to maintain discipline and decorum in the House but it looks like
they are a bit obstreperous this morning.
The Chair will guide you if we think that the sound system isn’t
adequate. Try to stand and we will assess it.
Mr L K JOUBERT: It seems that this microphone . . . Okay, I will try
again. Is it better now?
The HOUSE CHAIRPERSON (Mr G Q M Doidge): You might have to raise
Mr L K JOUBERT: Chairperson and hon members, the IFP supports the
Budget Vote but with reservations, as I will point out. However,
before I deal with our reservations, I wish to join the previous
speakers in expressing good wishes and in thanking the Minister, the
Deputy Minister, the chairperson of the portfolio committee and also
the officials of the Department of Justice . . . [Interjections.]
Ms F I CHOHAN-KHOTA: Chairperson, on a point of order: I wonder if
we couldn’t just seek your indulgence on this matter. It really is
quite difficult to hear the hon member, and I do think we need to
offer him the courtesy of at least listening to the speech that he
has prepared, if you would please indulge us.
EPD 20 MAY 2005 PAGE:36 of 180
The HOUSE CHAIRPERSON (Mr G Q M Doidge): We need to address this,
otherwise we are going to run into problems when permission is to be
sought from the Chair first. But please proceed seated, hon member,
and I am going to ask the sound and vision people to check the sound
Mr L K JOUBERT: Thank you, Chairperson. The first issue that I wish
to deal with is applications for presidential pardon or reprieve
that the IFP submitted and on which it is getting absolutely
nowhere. We submitted a total of 384 applications for presidential
pardons, in terms of section 84(2)(j) of the Constitution, as long
ago as September and October 2003, and that is more than one and a
half years ago.
Apart from acknowledging receipt of the applications, nothing has
transpired since then. My colleague, Mr Mzizi, wrote to the Minister
for Justice and Constitutional Development on 13 February 2004
enquiring when he could expect a reply. Our Chief Whip wrote to the
President on 11 November 2004 asking what progress had been made.
The President’s Office replied on 23 November and assured us that
the matter was receiving the President’s attention.
Hearing nothing further from the President, our Chief Whip, once
again, wrote to the Minister for Justice and Constitutional
Development on 19 January 2005 requesting an appointment to see the
Minister in this regard. Seeing that nothing happened, our Chief
EPD 20 MAY 2005 PAGE:37 of 180
Whip once again wrote to the Minister on 8 March 2005 and insisted
on an urgent interview to discuss this matter. Nothing happened;
there was complete silence. We are simply being ignored.
In the meanwhile, we have been very patient and we did not kick up
dust when Dr Boesak received a pardon. We were hoping that attention
would also, in due course, be given to our 384 applicants but, until
today, nothing has happened.
I therefore have to tell this House that 384 applications for
pardons are simply lying somewhere and nobody seems to be interested
in doing anything about them. This is nothing less than a violation
of human rights. Those 384 applicants and their families have been
waiting for a very long time but all they have received is silence.
I bring this matter to the attention of Parliament and the public,
and I today publicly request the hon Minister to kindly and urgently
inform us what the status of these applications is so that we can
immediately inform the applicants about where they stand.
The second issue I would like to raise is the backlog in finalising
court cases. We heard today that there are more than 2 000
outstanding cases. The Minister is doing her best, so is the Deputy
Minister, but the backlog is still there. Very upsetting and
shocking news reaches our ears about this situation. People await
trial while in custody for years at a time. There are indications
EPD 20 MAY 2005 PAGE:38 of 180
that some wait three to four years before their cases are heard. In
many cases, they are eventually acquitted. Why did they have to sit
in jail for three to four years, being innocent, because the system
could not process their cases?
It is said that one of the problems is that the police are not
carrying out the investigations timeously and effectively. That may
be so, but the duty still rests with the ANC as government to attack
this problem, which is causing the collapse of the criminal justice
system in this country. While the police and the Department of
Justice and Constitutional Development are struggling to deliver
results by finalising investigations and speeding up trials, the
victim in this chain is, of course, Correctional Services.
The situation in some prisons is so appalling that one feels ashamed
to be associated with the justice system. It has been pointed out in
other debates that the inspector-general of prisons, Judge Fagan,
found around 100 youths in a prison cell where there was only one
toilet - which was not working. I do not want to repeat the
tragedies in our prisons but today is the day that we have to
address the backlog in finalising trials. Justice delayed remains
Our third issue is that we are very concerned about the independence
of the judiciary that is threatened by our government’s plans. More
clarity will come to light in due course but the IFP wants to make
EPD 20 MAY 2005 PAGE:39 of 180
it clear that the independence of the judiciary is not negotiable.
It is one of the firm foundations on which our democracy is built.
Any attempt by government to threaten the independence of the
judiciary will be strongly resisted.
We wish the Minister and her department well for they have an
enormous responsibility. I thank you. [Applause.]
Mr P D N MALOYI: Chairperson, Minister, Deputy Minister, hon
members, comrades and friends, before I present my speech, I would
like to take this opportunity to express my sincere appreciation to
my organisation, the ANC, for granting me the opportunity to take
part in this debate today, taking into account that I am a fairly
new member of this committee. This shows the amount of confidence
they have in me, and I must assure you that they will never be
Let me restrict myself to two issues, the Re Aga Boswa project and
maintenance. The Re Aga Boswa project seeks to entrench the
principle of separation of powers between branches. It necessitates
a shift of administrative powers from judicial officers to court
Through this project our court managers will provide the day-to-day
management of services in court. They will, therefore, assist in
relieving our judicial officers and our prosecutors of their
EPD 20 MAY 2005 PAGE:40 of 180
administrative burden and thereby enable them to invest more of
their time and resources in the core judicial functions and
Amongst other things, this project also seeks to establish an
integrated and aligned court structure at the High Courts and lower
courts. That will assist in co-ordination and collaboration between
This committee, of which I am a member, has on numerous occasions
insisted that a clear strategy be worked out in order to reduce
drastically the case backlog and case cycle. At this point we should
acknowledge that the department, through this project, has
contributed a great deal to ensuring that we achieve our objective
of reducing the case backlog and case cycle.
As a committee and as members of the ANC we are happy and proud that
the project has been refined, in line with what was suggested by the
committee. The committee highlighted four key points that needed to
be taken into account when consolidating and refining this project.
I won’t go into those four key areas, but we are happy that they are
now encapsulated in the project as it stands today.
We should, therefore, as members of the committee, as members of
Parliament, and as members of the public, encourage the Minister and
the department to keep up the good work.
EPD 20 MAY 2005 PAGE:41 of 180
We further appeal to the Minister to ensure that the roll-out of
this nice project to other provinces is speeded up. We think that,
if we are able to do what was suggested by Comrade Fatima earlier
on, we will be able to ensure that this case backlog is addressed.
This project is trying to address exactly that.
The Freedom Charter envisions a society in which all shall be equal
before the law. This also suggests that we should pay particular
attention to the rights of those in our society who remain
vulnerable to neglect or abuse. Here I am referring to our children,
our elderly, the disabled and so on.
The enactment of the Maintenance Act in 1998 was informed by our
vision, a vision to build a caring state and a caring society. It is
now opportune for me to address this one important aspect, that it
is necessary for all of us, as South Africans, to understand that if
we are to build a caring society, mothers should not be mothers if
they are not ready to be mothers, and that fathers should not be
fathers if they are not ready to be fathers. If you want to be a
father or a mother, you must know that that goes along with
responsibility, and you will have to accept all the responsibility
that goes with it.
The cycle time for the hearing of matters related to maintenance and
other matters under investigation has been a problem for many years.
EPD 20 MAY 2005 PAGE:42 of 180
These matters were characterised by long delays, at times for
periods ranging from one to two years.
Data capturing was done manually, and sometimes information would
get lost in the process. We do need to correct this situation
because if we don’t, we will have serious problems.
We are happy that the department has taken a few critical steps in
an effort to achieve the above and to enable us to implement some of
the key sections of that legislation. One of those steps has been to
appoint maintenance investigators throughout the country.
With maintenance investigators, we would then have a pool of people
that would assist with tracing liable people and defaulters, take
statements from them and ensure that they appear in court.
Maintenance investigators will assist with those issues.
We must say that we appreciate this from the department, and further
say that it is necessary to deploy most of our resources in rural
Let me tell you about difficulties experienced in rural areas. Most
of our people who live in rural areas work in the mines. They leave
their homes in the Eastern Cape and go to work in the Rustenburg
platinum mines. Others leave their homes in Polokwane and go to work
in Kimberley. It then becomes difficult to trace these people.
EPD 20 MAY 2005 PAGE:43 of 180
The maintenance investigators will be based in rural areas and will
be able to interact with our people down there and trace the
individuals concerned. I appeal that we deploy more resources in the
I must say that for many years our maintenance officers, clerks,
etc, have not been appointed on a full-time basis. When you don’t
appoint people on a full-time basis it becomes very difficult for
them to be effective and efficient.
In my interaction with the department I have been given a document
that outlines clearly the timeframes within which maintenance
officers . . . [Interjections.]
The HOUSE CHAIRPERSON (Mr G Q M Doidge): Order! Hon member, I regret
your speaking time has expired.
Mr P D N MALOYI: It can’t be. [Applause.]
Mr C V BURGESS: Hon Minister, hon Deputy Minister, hon members and
distinguished guests . . . [Interjections.]
The HOUSE CHAIRPERSON (Mr G Q M Doidge): Hon Burgess, I think you
would do better if you were seated.
EPD 20 MAY 2005 PAGE:44 of 180
Mr C V BURGESS: Thank you, Chairperson. Not many years ago I had the
occasion to appear in court to defend various clients. The presiding
officers were predominantly white. The experience was very often a
humiliating one, and you were confronted, almost daily, with issues
of racism in court. But, we have come a long way in a short time and
the transformation that has taken place was unimaginable a few years
It would, however, be naive of anyone to expect that racism in our
courts and within the department would vanish automatically
overnight. There are those who have accepted transformation without
reservation. There are those who have been hesitant, and there are
those who have refused, and it is to them, hon Minister, that you
must say: Join us or leave us.
Transformation does not only involve the question of race. The hon
Minister is aware that in an attempt to transform the Bench we have
had huge problems when appointing women judges.
While it is accepted that the reasons for this inability are
complex, the ID, with respect, would encourage you, hon Minister, to
accelerate the contribution that you can make to improve this
unfortunate state of affairs.
I have previously identified the serious problem regarding the large
number of prosecutors that leave the department for the private
EPD 20 MAY 2005 PAGE:45 of 180
sector. The state allocates large amounts of resources for the
training of these professionals. Something is obviously not right
We again urge you, hon Minister, to give serious consideration to
reviewing the salaries paid to prosecutors, and to investigate how
to make the profession more attractive to university students and
others who wish to make a career out of it.
Lastly, there is the matter of blacklisting. We are confronted daily
by people who complain that they have been blacklisted for debt by
various institutions. The blacklisting, in many instances, occurred
as a consequence of debt that was accumulated during the apartheid
Those blacklisted are then punished further, because they are unable
to improve their social or economic status in our new democracy.
While the rules of court provide for the rescinding of judgments
once the debt has been paid, this process in itself is time-
consuming and very costly.
We respectfully look forward, shortly, to some form of intervention
by your department to alleviate this repressive process. Thank you.
Ms N M MAHLAWE: Chairperson, may I sit down, please?
EPD 20 MAY 2005 PAGE:46 of 180
The HOUSE CHAIRPERSON (Mr G Q M Doidge): Yes, you may.
Ms N M MAHLAWE: Chairperson, Minister and Deputy Minister, hon
members, the Chief Justice elect, Pius Langa, had this to say about
the courts and the justice system of apartheid South Africa, and I
Justice had a white unwelcoming face with black victims at the
receiving end of unjust laws administered by courts alien and
generally hostile to them.
The language of the courts was not that of the majority. Nor were
the culture and social practices of the judicial officers that of
the racial majority. The white face of justice was not only
overwhelming and part of an oppressive discriminatory system; it
also failed to recognise the humanity of the victims of the
In the same vein, Justice Mpati, delivering a lecture at the
University of the Free State, shared this view that under the
apartheid system magistrates and judges applied laws that ensured
that black people were denied respect and dignity. That meant that
the fundamental rights of the blacks were denied by the apartheid
system, with courts as agents of implementation. Hence in the eyes
of the black people and Africans in particular, who were subjected
to the unjust apartheid laws, the courts were part of the apartheid
EPD 20 MAY 2005 PAGE:47 of 180
system of oppression. In fact, courts were disgracefully racist,
authoritarian and repressive to the people of colour.
Among other things, the state of the apartheid courts forced the
people of South Africa, black and white, to gather in Kliptown in
1955, in what was commonly known as the Congress of the People, to
express their disapproval of the apartheid system, in particular the
apartheid version of the courts. They also demanded the replacement
of such of courts with people’s courts, which would be racially and
gender representative of the broader population of our society. It
was here that it was resolved that South Africa belongs to all who
live in it, black and white.
At the inception of democracy, it became apparent that the speedy
transformation of the magistracy and judiciary should be
conceptualised as necessary imperatives to eradicate the apartheid
white face of justice and replace it with a system which should not
only be representative but also competent, sensitive, humane and
responsive in nature and character, because representivity does not
necessarily infuse current values of our Constitution.
Since 1994, much progress has been made to address the racial and
gender legacy of the apartheid magistracy within the context of
transforming our society.
EPD 20 MAY 2005 PAGE:48 of 180
From 1994, of the magistrates who have been appointed, more than 50%
are black and more than 30% are women. At the end of February 2005
there were 1 767 magistrates, excluding the magistrates who were on
contracts; 906 of them were black while 532 were female. One can see
that there is an improvement here.
In the judiciary, there are currently 199 judges of the High Courts,
of which 14% are female and 86% are male, which, together with the
statistics on magistracy, shows that although we are appreciating we
are still lagging behind in terms of resolving gender imbalances
within the magistracy and judiciary.
Having acknowledged this, the Chief Justice elect, Pius Langa, on 18
May this year during the Budget Vote here in Parliament, made a
commitment to the Portfolio Committee on Justice and Constitutional
Development that during his term as Chief Justice he will focus on
improving the representation and leadership of women in the
magistracy and judiciary. Maybe we should applaud here. [Applause.]
Though much work has been done to develop the skills of black and
female magistrates, we still need to do more in terms of
transferring magisterial skills to all areas of our country,
particularly rural areas with a view to giving effect to the
principle of delivering justice to all the people of our society,
especially the poor and vulnerable masses.
EPD 20 MAY 2005 PAGE:49 of 180
Being committed to the principle of access to justice for all, the
ANC appreciates the progress made with regard to the rationalisation
of magistrates’ courts in our country. We support the
rationalisation of all our courts, including High Courts, because it
purports to replace the apartheid-drawn boundaries, which denied
access to services to the majority of the poor and the vulnerable
communities of our country.
The Bill that is being mooted purports to have one High Court in
each of the provinces, with Gauteng to have two – I suppose Gauteng
always has the lion’s share; maybe it is because it is the richest
province. This rationalisation of magistrates, which involves the
redemarcation and realignment of territorial jurisdictions to the
existing municipal and provincial boundaries, has brought justice
closer to the poor people who have suffered for a long time and have
had to travel long distances to courts.
One person remarked during my term of constituency work, that: “For
the first time in my life I have experienced a situation where I do
not have to travel for three hours to go to a case at the High
Court. I now travel only one hour to the High Court and the
magistrates’ court and I come back, sleep at home, and don’t have to
pay monies for board or accommodation.”
Despite this progress, there is still much that needs to be done to
ensure that the values, interests and aspirations of millions of our
EPD 20 MAY 2005 PAGE:50 of 180
poor people occupy the centre of our justice system. There are still
many judicial officers who, through practice and conduct, continue
to undermine our progressive Constitution, particularly women’s
rights and gender equality. Understandably, the department deals
with such officers accordingly.
As was the case during the apartheid days, the courtroom still
remains intimidating to many poor people, especially women and
children. In fact, in certain urban areas the majority of senior
judicial officers in particular are still white, male and
conservative and the majority of them were appointed by the
apartheid state during the apartheid days. Therefore, the department
must respond to this legacy of apartheid with a view to ensuring
that all judicial officers understand and embrace the constitutional
values of our democratic society.
Let me say something also about the Justice College within the
context of strengthening our judiciary. The department has
established a justice college, which provides training for
magistrates, judicial officers and other officers. [Time expired.]
Ms C B JOHNSON: Chairperson, hon Minister, hon Deputy Minister and
hon members, firstly, I want to extend my congratulations to the new
director-general and the new chief operating officer of the
department. I also take this opportunity to congratulate a senior
EPD 20 MAY 2005 PAGE:51 of 180
state advocate in the Eastern Cape, Adv Nickie Turner who, together
with her prosecuting team, in the Grahamstown Court, has developed a
new way of computerising the records of appeal, and it has been so
successful that they have increased the rate of finalisation of
these appeals from 47% to a whopping 97%. [Applause.]
They have also managed to reduce the average time taken to enrol
these appeals to only three months. It has been so successful that
the entire appeals backlog in the Eastern Cape has been completely
It is often said that justice delayed is justice denied. I think
that we should, therefore, give special credit and commend these
committed justice officials who assist in erasing these delays and
therefore ensure improved access to justice for all South Africans.
We really congratulate them. [Applause.]
In a constitutional democracy, such as ours, the legitimacy of the
judiciary is fundamental to the administration of justice. The
single most debated issue, I would say, over the past year and
probably also in this committee today is the transformation of the
judiciary. In short, for our justice system to be legitimate it has
to reflect our particular demographics and our particular diversity.
What that means for a person such as myself is quite simply that I
sleep very comfortably at night, knowing that Yvonne Mokgoro and
EPD 20 MAY 2005 PAGE:52 of 180
Kate O’Regan are sitting on the Bench of the Constitutional Court,
because I can identify with them. [Applause.]
We all know what the two main obstacles to transformation are. They
are racism and sexism. I want to focus on the latter today,
particularly regarding the private sector legal profession. Despite
the fact that more than 50% of our law graduates are female, and
that 52% of our population are indeed female, being a female judge
in the High Court today is still rather the exception than the norm.
While women are becoming more represented, women – particularly
black women – are still not appropriately represented in either the
justice system or the private sector legal profession.
Often the argument is put forward, when appointments are being made
to the Bench, that the pool of applicants from which to choose these
new appointments is simply too small. In other words, there are not
enough female candidates in the legal profession, which then
ultimately leads to the judiciary. So, therefore, I had a look at
the advocate’s profession and attorney’s profession and also at
various Bars. Here the facts speak very much for themselves.
According to an article by Adv Cherise Weiner SC of the Johannesburg
Bar – and the Johannesburg Bar is the largest in the country – in
April 2004 the Johannesburg Bar had only six female senior advocates
out of a total of 126. When one looks at the number of female
EPD 20 MAY 2005 PAGE:53 of 180
advocates in that same Bar – those who had more than five years’
seniority – there were 34 females as opposed to 265 males.
According to Roslyn Neiman, writing in the quarterly newsletter of
the Cape Bar, out of a total of 337 members at the Cape Bar, only 52
are female. Nationally, the same picture emerges. In the magazine
The Advocate, of December 2004, it is stated that in the membership
of the 10 constituent Bars in the country there were a total of only
13 female senior counsels. If you break that down further, in terms
of employment equity, you will find that 10 of these females were
white - there was not a single black African female senior
counsellor - one was coloured and two were Indian: a total of 13
senior counsellors, as opposed to 311 male senior advocates. No
wonder we say that the pool of applicants to be appointed to the
judiciary is too small.
Many women in partnerships should go out and make it possible for
women to access these positions. We cannot promulgate laws and
regulations for this. You cannot force people into the profession by
law and you cannot force the justice system to absorb more women by
drafting laws to this effect. What we need to do is to have a
powerful and committed movement of women and men who are dedicated
to developing social justice and breaking down the stereotypes that
exist in the profession, because you cannot legislate to change the
hearts and the minds and the perceptions of people. That is
something that we would have to do from our side.
EPD 20 MAY 2005 PAGE:54 of 180
Another problem faced by women in the legal profession is the type
of work and the particular briefs that they receive. In other words,
it’s a question of briefing patterns. Most female legal
practitioners will tell you that firms are very quick to brief them
when it comes to divorce matters, maintenance matters and general
family law, but they are not getting the more lucrative commercial
or company law type of work.
We may ask why this is important to government. But only last month
the Chairperson of the General Council of the Bar, Adv Norman
Arendse SC, wrote the following:
The issue of briefing patterns links to the transformation of the
judiciary in a very, very direct way. It goes without saying that
if black attorneys and women attorneys and advocates are not
exposed to the kinds of work to which they will be exposed one day
on the Bench and as judges, then the system of the administration
of justice will flounder and will effectively be brought into
disrepute, and that is why it’s a matter of crucial importance.
So, while we have made significant inroads, there is still more that
we could be doing. Government is a major client of the legal
profession, not only in litigation, but also through the use of
attorneys’ firms, often as transaction advisers in commercial
transactions, public-private partnerships and concessionary
agreements. Often outside attorneys are called in to draft or
EPD 20 MAY 2005 PAGE:55 of 180
finalise White Papers or Green Papers; in other words, in policy
formulation . . . [Time expired.][Applause.]
Ms M V MERUTI: Madam Chairperson, hon members, hon Minister and hon
Deputy Minister, the justice family, ladies and gentlemen . . .
. . . fa Motswana a re, mmangwana o tshwara thipa ka fa bogaleng, o
abo a opa kgomo lenaka. Mme a ka baya tau botsetse. Bopelokgale jwa
lona bomma, bo thusitse gore re gololwe. (Translation of Setswana
[. . . it is true when a Motswana says that a leader has to protect
the interests of the group. This shows that this woman was brave. It
was through your bravery that I was freed.]
The role of women in obtaining our liberation cannot and must never
be undermined, nor forgotten. Much pain, suffering, hardship and
sacrifice went into ensuring the destruction of apartheid and the
liberation of people. Our fight, the women’s fight for freedom from
oppression was waged with a strength that equalled that of our male
Voor 1994 was ons regstelsel onder die beheer van die regering.
Onskuldige mense is in die tronk gegooi, mense is doodgemaak en
ander selfs die doodstraf gegee. Die regstelsel was veronderstel om
mense se regte te beskerm, maar die teenoorgestelde het gebeur.
EPD 20 MAY 2005 PAGE:56 of 180
Ek dink aan kameraad Ma Evelyn de Bruin wat alreeds ’n groot vrou
was. Sy was bekend as Beskuldigde Nommer 18 in die Upington-26-
verhoor. Sy was ’n moeder met kinders en ’n aktivis, en het die
ergste vorm van diskriminasie teenoor vroue ondervind. Vir twee jaar
was sy vingeralleen in die dodesel.
Waar is die regter wat vir Ma de Bruin onskuldig die doodstraf
opgelê het? Waarom het hy nie na die Waarheid- en
Versoeningskommissie toe gegaan om sy sonde te bely nie?
Hierdie is maar slegs een voorbeeld van ’n vrou wat die verdrukking
van ’n ondemokratiese stelsel moes verduur. (Translation of
Afrikaans paragraphs follows.)
[Prior to 1994, our legal system was under the control of the
government. Innocent people were sent to prison, people were killed
and others even sentenced to death. The legal system was supposed to
protect people’s rights, but the opposite happened.
Comrade Ma Evelyn De Bruin, who was already a mature woman, comes to
mind. She was known as Accused No 18 in the Upington 26 case. She
was a mother with children and an activist, and had to experience
the most severe form of discrimination against women. For two years
she was all by herself on death row.
EPD 20 MAY 2005 PAGE:57 of 180
Where is the judge who handed down the death penalty to the innocent
Ma De Bruin? Why did he not appear before the Truth and
Reconciliation Commission to confess his sins?
This is but one example of a woman who had to bear the brunt of an
Speaking at the ANC 2002 National Conference in Stellenbosch,
President Thabo Mbeki said that part of the task the country faced,
to further entrench our democratic system, was the ongoing work to
transform the judiciary, including the realisation of the objective
of equitable representation of both black people and women.
In the past, courts were under the control of the Minister of
Justice and had to execute orders. The ANC-led government is
committed to the independence of the judiciary as it is enshrined in
the Constitution. Yes, transformation has taken place, but a lot
still has to be done, especially concerning women.
As my colleague has already said, there are currently 199 judges, of
which only 14% are female. All heads of courts are male - an
unacceptable position. Women judges themselves admit that there is
racism and sexism. The appointment of women judges in representative
numbers relative to the population is critical to the achievement of
gender fairness in courts. A judiciary that represents a largely
male perspective may not treat all litigants equally. There is
EPD 20 MAY 2005 PAGE:58 of 180
evidence that the presence of female judges helps to sensitise male
colleagues to gender-related issues that judges face in their role
Authors Kelly and Killigan established the premise for the
conclusion that women, as policy entrepreneurs in courts, bring a
unique perspective to the investigation, prosecution and
adjudication of sexual violence cases.
McKinnon writes that, from a macro perspective, women involved in
the prosecution of sexual crimes may provide greater sensitivity for
the perspectives of victims, or provide a broader understanding
about the impact on women within the community where the assault has
I would like to talk about the achievements that women are enjoying
due to progressive legislation and policies passed by this ANC-led
government. The first one is that the Constitution of the Republic
of South Africa, widely acclaimed as one of the world’s most
progressive constitutions, asserts in its founding provisions that
the democratic state is founded on the values of human dignity, the
achievement of equality and the advancement of human rights and
freedoms, nonracism and nonsexism.
The second one is the Maintenance Act, which my colleague has
already spoken about.
EPD 20 MAY 2005 PAGE:59 of 180
Ka Setswana ke tla re nako ya gore borre ba tshabe maikarabelo a
bona, e fetile. Molao o, o letla kgotlatshekelo go ntsha taelo gore
bathapi ba goge madi mo letsenong lwa ga rre go tlamela ngwana
kgotsa bana. Fa rre a ja bonyenyelo, badirikgotla ba tla mmatla le
go mo pateletsa go amogela maikarabelo a gagwe. Batsadi boobabedi,
ba na le maikarabelo mo kgodisong ya ngwana.
Go na le kgetsi e e ileng ya nkutlwisa botlhoko, ya ga mme yo o neng
a ikadima R80.00 ya ga rre mme gompieno o mo kgolegelong dingwaga di
le lesome. A ke tshiamo?
Fa re tla mo go Domestic Violence Act, bomme ba newa tshireletso
kgatlhanong le tshotlo ya bomme. Nako ya gore mapodisi a gane go
amogela dikgetse tsa tshotlo e fetile. Re a gakologelwa gore nako
tsele, e ne e re fa o iteilwe, otla o kitikilwe, o tabogela kwa
mapodising, a bo a re tseo ke tsa lelapa ga re ditsene. Nako eo e
fetile. Le fa go le jalo, go sa ntse go na le mapodisi a a sa
fetogang, a a tshwanetseng go rupisiwa go tlhaloganya gore
ditshwanelo tsa botho ke eng le go itse go dira tiro ya bona.
Re na le Recognition of customary Marriages Act, mme yona e thusa
rona bomme gore re se tlhole re bidiwa bana. Bogologolo ene e re fa
o nyetswe ka dikgomo, ka setso, o ne o le ngwana wa ga rre wa ntlha.
O ne o bidiwa ngwana o be o tsofale o ntse o bidiwa ngwana. Gompieno
re balekane. Re a lekana go sa kgathaletsege gore o nyetswe jang.
[Legofi.] (Translation of Setswana paragraphs follows.)
EPD 20 MAY 2005 PAGE:60 of 180
[In Setswana I would say that the time has passed when fathers could
neglect their responsibilities. This law allows a court to issue an
order to employers to deduct money from the salary of a father for
the maintenance of a child or children. If the father neglects his
responsibility, court officials can search for him until he is found
and he could be ordered to carry out his responsibilities. Both
parents have responsibilities with regard to the upbringing of their
A case that once hurt me involved a woman who stole R80 from a man.
As we speak she is serving 10 years in prison. Is this justice?
The Domestic Violence Act protects women against abuse. The time has
passed when police officers could refuse to help people who wanted
to lay charges of abuse. We still remember that in those days, when
one was assaulted and beaten, police officers would say that that
was a family affair and that it did not concern them. That time has
passed. However, there are still police officers who have not
transformed, who have to undergo training in order to understand
what human rights are and to know how to perform their duties.
We have the Recognition of Customary Marriages Act, which helps us
women not to be regarded as minors. In the past when you were
married traditionally, and cattle was used as lobola, you were
regarded as your husband’s first-born child. You would still be
EPD 20 MAY 2005 PAGE:61 of 180
regarded as a child in your old age. Today we are partners. We are
equal regardless of the nature of the marriage. [Applause.]]
The ANC-led government pledges to strive together with the people,
sparing neither strength nor courage, until the democratic changes
set out in our Freedom Charter, which our colleagues said was drawn
up in Kliptown 50 years ago, have been achieved. We will achieve. We
are a winning team. I thank you, Chairperson. [Applause.]
Mr S N SWART: Chairperson, hon Minister, Deputy Minister, guests,
let me begin by adding the ACDP’s congratulations on the appointment
of the new director-general and the chief executive officer. I join
in welcoming them to the justice family.
I followed the recent debates surrounding the independence of the
judiciary carefully. At the heart of the dispute is the perception
that the package of proposed amendments amount to a direct assault
on the independence of the judiciary, if not immediately, then, at
least, potentially in the future.
Prof Corder, after considering the proposed changes, stated, and I
This reallocation of authority from the judicial to the executive
branches of government could be used to undermine judicial
independence. Thus a crucial foundation stone of the constitutional
EPD 20 MAY 2005 PAGE:62 of 180
democracy for which so many struggled and paid the price could be
John Kane-Berman, writing in yesterday’s Business Day, pointed out
that “efficient ‘delivery’ is the ingredient most lacking in the .
. . criminal justice system.” He went on and wrote that the fact
the government “should now be seeking to take administrative control
of the judiciary in the belief that it can make it work more
efficiently shows a lack of self-awareness.” And he added that
either this is the fact “or the real issue is not ‘delivery’ but the
desire for more power.”
Outgoing Chief Justice, Judge Chaskalson, expressed the view that
most judges and lawyers have the view that these measures are
demeaning to, and show a lack of trust in, the judiciary. However,
earlier this week he stated that where, as in our Constitution,
power is shared, there is inherently a certain tension and this
should not be seen as a calamity.
The issue, according to him and which I would agree with, is how
these tensions are resolved. He added that his experience regarding
three Ministers of Justice showed, however, that at all levels there
was an attempt to co-operate and find solutions. What is heartening
in this regard is your willingness, hon Minister, to take heed of
EPD 20 MAY 2005 PAGE:63 of 180
the judiciary’s concerns and your commitment to further meetings
with leading judges in order to find a workable solution.
Public vigilance is always crucial when matters regarding judicial
independence are at stake. Whilst we appreciate that the judiciary's
objections to the Bills are fundamental, and might not be remedied
by a concession here and an assurance there, we have no doubt that,
with a willingness and openness to discuss matters, a solution will
be found. The ACDP, for its part, will contribute to the process in
a constructive manner in the portfolio committee when the Bills are
presented to find ways of streamlining and not undermining the
A judicial system is only as good as those who administer the law.
Whilst there are many very dedicated prosecutors and magistrates,
the crime problem is aggravated by a criminal justice system that
would appear to have insufficient capacity to serve as an adequate
deterrent to crime. As I have said before, we need to ensure that
the day-to-day functioning of that system is achieved by enforcing
an integrated approach.
In conclusion, I would like to thank all the members of the
department for their committed and dedicated work. [Time expired.] I
thank you. [Applause.]
Nmz J B SIBANYONI: Ngombana kungilesi sikhathi sonyaka ngithanda
ukulotjhisa ngokuthi iKosi ithabile. Ngiphele ngithokoze kuwe
EPD 20 MAY 2005 PAGE:64 of 180
Mhlalingaphambili, kuNgqongqotjhe neSandla sakhe, ngithokoze
nakunkhambeli ezikhona namhlanjesi ngaleli thuba engilifumanako
lokobanyana nami khengiphose elobubodlhana. Ngesingami kule
kulomongangiswano indaba engicalene nayo ngeyeBhodi yezoSizo
loMthetho simahla. (Translation of Ndebele paragraph follows.)
[Mr J B SIBANYONI: Since it’s this time of the year, I would like to
greet everyone by saying that our Chief is excited. Let me thank
you, Chairperson, as well as the Minister and his Deputy. I also
want to thank our guests who are present today for being given this
opportunity, to say the least. According to me, in this debate, I am
faced with the Legal Aid Board issue.]
Fifty years ago, the Freedom Charter stated that: “All shall be
equal before the law”. The reason for this call or demand was that
people were discriminated against on the basis of the colour of
their skin, and apartheid was legislated. The said clause from the
Freedom Charter is reflected in the Bill of Rights, which forms part
of our Constitution. The clause says that everyone is equal before
the law and has the right to equal protection and benefit of the
What is important here is that people have a right to be protected
by the law and to benefit from it. Put otherwise, the state has a
duty to protect the individual’s rights and guarantee their benefits
in terms of the law. In the past, there were no human rights; only
EPD 20 MAY 2005 PAGE:65 of 180
human wrongs and injustice prevailed. Arrested, detained and
sentenced persons did not have access to lawyers or legal
representation rights but depended on individual financial muscle.
Thus poor people did not have access to lawyers. Consequently, they
did not have access to justice.
The new Constitution guarantees the right to legal representation to
arrested, detained and sentenced persons at the state’s expense if
substantial injustice would otherwise result. Legal aid, consisting
of legal advice and legal assistance, is meant to give access to
justice to the poor, namely the indigent.
The Legal Aid Board’s vision is to create a just South Africa in
which all the rights enshrined in the Constitution are respected,
protected and defended to ensure justice for all. The Legal Aid
Board has had turbulent periods in the past years. It transformed
from being an organisation serving apartheid to one serving the
The Legal Aid Board initially operated a judicare system where
private lawyers were instructed to represent clients, but now it is
moving towards being a justice-centred system, where the Legal Aid
Board employs lawyers on a full-time basis to represent clients.
Presently, there are 58 justice centres and 35 satellite offices. We
are told that, through the use of improved systems such as the Ad
EPD 20 MAY 2005 PAGE:66 of 180
Infinitum computer system, the Legal Aid Board has been able to
focus its expenditure more closely on delivery rather than on
administrative expenses. Access to justice has improved.
The preamble to the Freedom Charter says:
We, the People of South Africa, declare for all our country and
the world to know: that South Africa belongs to all who live in
it, black and white.
The Legal Aid Board’s slogan is “justice for all”. It is on these
bases that the ANC-led government provides legal aid, even to eight
of the 22 members of the Boeremag who stand trial on 44 charges that
include plotting to overthrow this very democratic government,
plotting to assassinate our former President, Nelson Mandela, and
other heinous crimes.
The Legal Aid Board has been funding this trial for the whole year
and the trial is expected to continue for some time. Some of the men
are represented by the Pretoria justice centre lawyers; 12 of the
accused have private funds and were informed that legal aid will be
granted to them once their funds have run out.
In analysing previous expenditure, I would like to point out that
the Legal Aid Board’s budget has increased tremendously over the
years. In the 1993-94 financial year the budget was merely R62,1
EPD 20 MAY 2005 PAGE:67 of 180
million; in the 2003-04 financial year the budget was R474 million;
and the intended budget for the 2005-06 financial year is R448
The Legal Aid Board is facing certain challenges that include the
following one, amongst others, namely a lawyer being booked for many
cases in different courts. I submit that, regarding justice centre
lawyers, meeting their clients for the first time in court tampers
with ethics. Also, the possibility of having court rolls for legal
aid matters only should be investigated as a solution.
The Legal Aid Board should make some interventions to address
backlogs regarding assistance to awaiting-trial prisoners. The Legal
Aid Board should fight the high level of poverty in rural areas by
providing more legal aid to the poor. Insufficient access to social
services and justice affect these communities the most.
There should be liaison with other role-players who render legal
aid, such as the university law clinics and accredited advice
centres that are run by NGOs. Paralegal advice that does not involve
legal representation should be provided. Dispute resolution should
be used more often instead of litigation. The perception that legal
aid lawyers or justice centres provide legal services of a lower
standard than private lawyers should be corrected. Maybe the fusion
of the Bar and the Side Bar is the solution.
EPD 20 MAY 2005 PAGE:68 of 180
The Legal Aid Board should monitor those courts that have a tendency
of passing sentences that induce a sense of shock. The majority of
our people or convicted persons do not have the financial resources
to take those sentences on appeal. We have heard of a case in which
a woman was sentenced to 4 months’ imprisonment or alternatively
fined R2 000 for stealing a deodorant worth R16. Another one was
sentenced to 6 months’ imprisonment, without the option of a fine,
for calling someone a lizard.
The issue of children who are sentenced to reformatory schools but
end up being detained in ordinary prisons should be sorted out. Two
years ago, the Justice portfolio committee went on a site visit to
Port Elizabeth Correctional Services and found children who had been
sentenced to spend three years at a reformatory school but had been
waiting at an ordinary prison for four years.
When making its input to the portfolio committee, the Legal Aid
Board went through a barrage of legislation and mentioned rights
that are guaranteed by the Constitution, which concern equality,
environment, property, housing, health care, food, water, social
security, education, and access to courts. The Legal Aid Board
argued that, by implication, the state has a role to assist those
who are unable to access the courts and are unable to have fair
trials so that they can attain their rights that are guaranteed in
EPD 20 MAY 2005 PAGE:69 of 180
The Legal Aid Board also referred to demands for civil legal aid in
terms of the following legislation and statutes: The Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act, the
Labour Relations Act and equality legislation, to mention but a few.
In the light of this situation, the Legal Aid Board has earmarked
10% of its funds to deal with civil matters.
The question that should be asked is: Is the Legal Aid Board meeting
the challenge presented by the criminal justice system or,
alternatively put, should their criminal mandate be equated to a
civil mandate? Shouldn’t there be a separation between the public
defender and civil litigation? The Legal Aid Board has a duty to
provide a proper defence. They should provide representation to the
best of their ability and boost the area of their work.
The prosecution, we are told, is achieving a high conviction rate of
between 80% and 90%. The high conviction rate is obviously good for
the prosecution. The question to be asked here is: Are those
convicted persons afforded legal representation? Is the Legal Aid
Board monitoring the situation?
Access to justice and equality before the law is critical as we
celebrate the 50th anniversary of the Freedom Charter. Ngiyathokoza.
[I thank you.] [Time expired.] [Applause.]
EPD 20 MAY 2005 PAGE:70 of 180
Ms S RAJBALLY: Chairperson, Minister and Deputy Minister, as a
democracy we appreciate and uphold our national Constitution as
supreme. The department serves to ensure, secure and uphold this
constitutionalism. The MF acknowledges the decrease in the budget
last year as a result of magistrates’ salaries now falling within
the parameters of the NRF. As a result, instead of a 0,3% increase,
this year’s budget actually increases by 14%.
Firstly, we support the fact that the additional allocation for
2005-06 will be applied to address the improvement in the management
of cases. Hopefully, this will serve to assist in reducing the load
and backlog of cases. Secondly, we support the fact that the
additional allocation will improve court security that has become a
major concern over the past years, and, as a result of which we have
had situations where persons standing trial managed to break out and
we’ve had incidents of violence. Thirdly, the additional allocation
will assist in the rehabilitation of courts and the transformation
of the justice system.
The MF notes that this department had no roll-over. This clearly
indicates good management and utilisation of funds. Keep up the good
work and thank you, hon Minister, Deputy Minister, and your
department! That is money well spent with regard to the budget.
Hon Minister, the MF would like to see the 88% shortfall of social
workers in the advocates’ office addressed. There are 16 social
EPD 20 MAY 2005 PAGE:71 of 180
workers who deal with between 4 500 and 5 000 family court cases a
year. This causes serious backlogs and leads to a minimal amount of
time being spent on each case to address individual situations.
The MF would like to see the enforcement of a justice system that is
firm and effective with regard to offenders, prevention, deterrence
and reformation. Even though our prisons are full, leniency for
offenders who return to crime once they have been released should
not be allowed. Once released, an offender should not be allowed to
endanger society, as was the case with the two conmen who were twice
involved in crime in the Free State after just being released.
Returning to the budget, we note that there is a fair division of
funds among the varying programmes of the department. The MF is
confident that this will, once again, be put to use wisely,
effectively and efficiently. Hopefully, by next year, we will be
celebrating the earlier-mentioned aim of addressing concerns within
the sector. The MF supports the Vote. Thank you very much.
Mr G SOLOMON: Hon Minister, Deputy Minister, hon MPs, ladies and
gentlemen, for the financial year 2005–06 the Department of Justice
and Constitutional Development had R5,9 billion at its disposal from
EPD 20 MAY 2005 PAGE:72 of 180
With this financial resource and in co-operation with the rest of
the departments in the cluster of peace and security, the department
has a duty to the people of South Africa to continue with its
primary aim of transforming the justice system; upholding and
protecting the values and principles of our Constitution, and the
rule of law; and rendering an accessible, fair, speedy and cost-
effective administration of justice in the interests of a peaceful
and more secure South Africa for all who live in it.
Since its inception, one of the major problems of the department has
been the management of its finances. This was mentioned by the hon
Minister and this challenge has been successfully overcome.
Therefore, we can say with confidence to those whom we serve in
South Africa that, under the ministerial leadership of the hon
Brigitte Mabandla, and the Deputy Minister, Johnny De Lange, they
can look forward to good service and value for their money.
The question that will be uppermost in our minds will be: How does
this contribute towards making justice more accessible to all the
people of South Africa, particularly the most vulnerable, the poor,
women and children? And how does this contribute to the
transformation of the justice process and its aims to make it
conform to the spirit of our Constitution and the betterment of the
lives of all the citizens in our country?
EPD 20 MAY 2005 PAGE:73 of 180
After all, the justice system deals with people across the board.
Its ethos is grounded on human rights and on the Constitution. It
deals with people in their worst portrayal of human nature, as
offenders of some of the most heinous crimes. It also deals with
people as victims of circumstances, abused women, children, and
orphans. We expect that justice must be seen to prevail. The justice
process must also be available to assist people who want to exercise
their constitutional right to pursue individual and collective
opportunities for prosperity and a better life in South Africa.
We are aware that the departmental Vote is far from adequate for the
attainment of its vision and mission. This situation is further
complicated by the extent of poverty in our country and the
challenges of HIV/Aids. But we understand the challenges of our
developing country, in line with our government’s policy on Nepad –
the New Partnership for Africa’s Development. We are prepared and
are capable of creating innovative means to take forward our primary
challenge of reconceptualising the notion and the practice of
justice in a post-apartheid South Africa and Africa.
Now, I wish to comment on what this department has done about the
serious matter of crime and particularly organised crime, which has
the potential to threaten our democracy and economy. For this
purpose, we have created special units with special expertise. Let
me briefly sketch a background for some of the history of organised
EPD 20 MAY 2005 PAGE:74 of 180
crime so that we can understand where we come from on this issue in
According to the Institute for Security Studies, the phrase
“organised crime” only became part of the vocabulary of the SA
police in 1991. That is when it became inevitable that the ANC was
going to govern this country. Before that, the government was not
concerned and did nothing at all. During the 1980s, the government
was focused on clamping down on opposition, political activities and
The specialised police and all the other police were very busy
making life difficult for many people on this side of the House, and
not making it difficult for criminals in the country. For this
purpose, it engaged the military and specialist police, as well as
ordinary police. The primary task of crime prevention by the police
was thus relegated to the background.
It is quite clear that while the apartheid government was
channelling its resources into trying to steer the inevitable
transition of South Africa into a democracy, organised crime gained
a foothold and transformed itself from a domestic law and order
problem to a national and international security threat, ready to
capitalise on the conducive environment which the political
transition of the early 1990s produced.
EPD 20 MAY 2005 PAGE:75 of 180
Fortunately, there were no indications that state institutions had
been infiltrated to any significant degree by organised criminal
groups. Therefore, South Africa still has an opportunity to stop the
rot, something which many developing countries can no longer do
because the degree of infiltration and extent of corruption of
persons of influence have become such that organised criminality and
corruption have almost become endemic.
We express our thanks to the late Minister, the hon Dullah Omar, the
first ANC Minister for Justice who took the initiative to draft a
national crime-prevention strategy which, amongst other things,
prioritised organised and cross-border crime. In order to deal with
this serious threat to our democracy, economy and the maintenance of
public confidence in our criminal justice system, this portfolio
committee has armed the Directorate of Special Operations, the DSO,
and the Special Investigating Unit with sophisticated and
internationally acclaimed anticrime legislation.
In addition to the National Prosecuting Authority Act of 1998, there
are statutes, which include the Prevention of Organised Crime Act of
1998; the International Co-operation in Criminal Matters Act of
1996; and the Extradition Amendment Act of 1996. The DSO is
committed to the investigation of crimes of national importance –
crimes that threaten national security and economic stability. In
many instances, these fall outside the capacity of the SAPS.
EPD 20 MAY 2005 PAGE:76 of 180
The DSO pioneered a novel approach with great success that combined
intelligence, investigation and prosecution. With its success rate
of a 93% conviction rate in high-profile cases, it has greatly
enhanced the public confidence in its ability to impact on organised
crime, money laundering and racketeering in this country.
The latest provisional figures released by the Asset Forfeiture Unit
for 2003-04 are for 124 cases completed. It seized R232 million, of
which R70 million went to victims and approximately R25 million will
go to the criminal asset recovery account used to fight crime in
The Special Investigating Unit - which is not part of the DSO –
guided by its mission of anticorruption, performs high-quality
investigations in the public interest. And, it takes legal action to
prevent and recover losses of state monies and assets. Its
achievements in 2004-05 were recovery of cash estimated at R23
million from persons involved in corruption and fraud in government
departments, with savings of an estimated R380 million for various
departments. Other major achievements are 165 investigated cases
referred to the SAPS or Scorpions for criminal action, and 207 cases
referred to departments for disciplinary action.
Time does not allow us to go through the sterling work done by other
specialised units as well, namely the Sexual Offences and Community
EPD 20 MAY 2005 PAGE:77 of 180
Affairs Unit - with Thuthuzela centres giving expert assistance to
the victims of rape . . . [Time expired.] [Applause.]
Dr J T DELPORT: Agb Voorsitter, wanneer daar oor rassisme gepraat
word, word vingers alte maklik na wit Afrikaners gewys. Ek verwerp
dit as ’n veralgemening. Dis eenvoudig nie waar nie. Afrikaners sal
nie op Loftus vir Brian Habana as ’n held toejuig as hulle basies in
hul siel rassiste is nie. Wat wel waar is, is dat talle wit
Afrikaners gebelg voel, selfs met wrewel vervul word, oor sekere
dinge wat gebeur. Maar dit geld nie net vir wit Afrikaners nie, dit
geld ook vir bruinmense, Engelssprekendes, en selfs vir swartmense
in die townships wat hul eie burgemeesters onder klippe steek omdat
hulle gegrief is oor dinge wat gebeur.
Ons kan nie nie-rassigheid proklameer nie. (Translation of Afrikaans
[Dr J T DELPORT: Hon Chairperson, when discussing racism, it is all
too convenient to point fingers at white Afrikaners. I reject that
as a generalisation. It is simply not true. Afrikaners at Loftus
would not cheer Brian Habana like a hero if at heart they were
racists. However, it is true that many white Afrikaners take
offence, and are even filled with resentment, at certain things that
are happening. But that applies not only to white Afrikaners, but
also to coloureds, to English speakers, and even to blacks in the
EPD 20 MAY 2005 PAGE:78 of 180
townships, who start throwing stones at their own mayors because
they are aggrieved by events.
We cannot ordain nonracialism.]
We cannot ordain nonracialism. It must grow. It must be achieved.
Dit kan net uit een matriks groei, die matriks van ons Grondwet wat
daargestel is om almal van ons ’n gevoel van geborgenheid en ’n
billike, regverdige en veilige omgewing te gee. En dit is waar juis
die probleem inkom, en waar nie net ons wat wil rassisme uitroei ons
deel moet doen nie, maar ook die regering.
Ek gaan reguit praat: artikel 29 waarborg ouerkeuse by die medium
van onderrig op skool. Moedertaalonderwys, sê onafhanklike studies,
is ’n opvoedkundige bate. Waarom wil die ANC-regering hom verset
teen uitsprake soos in die Mikro-saak? Waarom wil hulle dit tot niet
Tweedens, artikel 72 sê die regering moet die handves van regte
implimenteer; ook, onder andere, die reg op eiendom. Duvenhage, ek
verwys na die Duvenhage-saak, spook vir vyf jaar met twee
hofuitsprake dat die regering hom moet help omdat sy eiendomsreg
vernietig word deur plakkery. Vyf jaar lank doen die regering niks
nie. Wat sê die Konstitusionele Hof? Die Konstitusionele Hof sê
hierdie vorm van plakkery is ’n resep vir chaos.
EPD 20 MAY 2005 PAGE:79 of 180
Ek noem nog ’n voorbeeld. Elkeen in Suid-Afrika is tog geregtig op
veiligheid, iets waarvoor die regering moet sorg, en almal van ons
moet natuurlik ’n bydrae maak. Maar hoe kan die regering, terwyl ná
1994 méér as 1 500 witboere en hul gesinslede uitgemoor is, die
kommando’s gaan afskaf sonder om iets in die plek daarvan te sit?
Dit was mos ’n instrument om daardie veiligheid te skep, die mense
geborge te laat voel, en om vertroue in hul regering te help wek.
Dit vervul ook vir my met wrewel as daar niks aan gedoen word nie.
Hoekom moet die regering so inmeng in sport? Is dit nodig? Selfs die
Springbokspan word nie ontsien nie. My oorlede ouma het gesê:
“hygend hert der jacht ontkomen”, as sy baie verbaas was oor iets.
Die afrigter kondig die span aan, en hy verdedig sy spankeuse deur
te sê: “ook die regering is tevrede”. Wat het spankeuses met die
regering te maak? [Gelag.] Vader ons! Verwag u iets anders as wrewel
by ware sportliefhebbers as dit gebeur? En by diegene wat
onregverdiglik nou oor die afgelope paar jaar ’n Springbokbaadjie
Hoeveel beter kandidate vir ’n pos word nie opsy geskuif vir swakker
kandidate omdat hul velkleur nie reg is nie? Is dit ’n bousteen vir
die reënboognasie? As stemme opgaan dat die bruin premier plek
behoort te maak vir ’n “African”, soos gesê word, sal dit nie wrewel
skep nie? En kyk wat gebeur, daar is chaos in plaaslike regering.
Hoekom? Omdat onbekwame mense aangestel is in verantwoordelike
EPD 20 MAY 2005 PAGE:80 of 180
posisies in die naam van transformasie. Transformasie sonder ’n
verbetering in standaard is ’n resep vir mislukking.
Hoekom moet daar so onsensitief met gevoelige sake soos plekname
omgegaan word, sonder raadpleging, sonder behoorlike gesprek? Dit
lok mos wrewel uit. Maar wrewel is nie rassisme nie. Verseker is dit
nie rassisme nie. Rassisme moet deur almal van ons oorkom word. Ek
moet ’n bydrae maak. Almal moet ’n bydrae maak, maar ook die
regering. Optrede van die regering wat wrewel ontlok omdat dit
inherent onbillik is teenoor sommige, werk direk teen die bereiking
van daardie groot ideal.
Ek het gister die vrymoedigheid geneem om vir ons uittredende
hoofregter te sê dat transformasie werklik volvoer sal wees die dag
as ’n witman weer die hoofregter van Suid-Afrika kan word, nie op
grond daarvan dat hy wit is, of ’n man is nie, maar omdat hy bekwaam
en die ideale persoon is om daardie hoë pos te kan beklee. Dit is
waarheen transformasie moet lei, naamlik dat almal van ons gelyke
kanse sal hê om heel bo te kom.
Meer en meer burgers van Suid-Afrika sien hierdie dinge in. Mag die
Mnr D V BLOEM: En Bloem . . . [Tussenwerpsels.]
EPD 20 MAY 2005 PAGE:81 of 180
Dr J T DELPORT: Jy ook. Jy ook. Ek sê - en ek praat nie met die agb
lid nie, ek sluit hom nie in nie - meer en meer mense sien dit in.
Uiteindelik sal hy dit ook insien. My versugting is, mag die
regering ook tot insigte oor hierdie sake kom. [Applous.]
(Translation of Afrikaans paragraphs follows.)
[It can be developed from one matrix only, the matrix of our
Constitution, which was put in place in order to give all of us a
sense of security and a fair, just and safe environment. And that is
exactly where the problem arises, and where not only those of us who
want to eliminate racism have to play our part, but also the
I will be frank: Section 29 guarantees parental choice regarding the
medium of instruction at school. Mother-tongue instruction,
according to independent research, is an educational asset. Why does
the ANC government wish to oppose verdicts such as the one in the
Mikro case? Why do they wish to annihilate it?
Secondly, section 72 stipulates that the government is to implement
the Bill of Rights including, among others, the right to tenure.
Duvenage, and I am here referring to the Duvenage case, has been
struggling for five years to implement court orders that the
government should protect him, because his right to tenure is being
undermined by squatting. For five years the government has done
nothing. What does the Constitutional Court have to say about this?
EPD 20 MAY 2005 PAGE:82 of 180
The Constitutional Court says this form of squatting is a recipe for
I will mention a further example. Everyone in South Africa has a
right to safety, for which the government has to provide, and all of
us have to contribute towards this goal. How can the government
abolish the commando system without putting anything else in its
place, in the light of the fact that post-1994 more than 1 500 white
farmers and their families have been massacred? That was, after all,
an instrument to provide for that safety, to give people a sense of
security, and to nurture their trust in the government. I, too, am
filled with resentment that nothing is being done about this matter.
Why must government interfere with sport in the way it does? Is that
necessary? Not even the Springbok team is exempt from such
interference. My deceased grandmother used to quote a certain Dutch
saying when something astounded her: “hygend hert der jacht
ontkomen”. The coach announces his team, and he defends his
selection by saying: “the government is also satisfied.” What does
team selection have to do with the government? [Laughter.] Goodness
gracious! When something like this happens, what else but resentment
do you expect from genuine sport fans? And also from those to whom
Springbok colours were unjustly denied over the past few years?
How many better candidates for a post are being rejected in favour
of weaker applicants because they do not have the right skin colour?
EPD 20 MAY 2005 PAGE:83 of 180
Is this a building block for the rainbow nation? When there are
demands that the coloured premier should make way for an “African”,
as was reported, does that not cause resentment? And look at what is
happening to local government, there is chaos. Why? Because
incompetent people have been appointed to influential positions, all
in the name of transformation. Transformation without an improvement
in standards is a recipe for failure.
And why should it be necessary to address sensitive issues, such as
place names, in such an insensitive way, without consultation and
without a proper discussion? Of course that provokes resentment. But
resentment is not racism. That is surely not racism. All of us need
to overcome racism. I have to play my part. All of us need to play
our part, but so does government. Government action that provokes
resentment because it is inherently unjust towards certain people
militates directly against the achievement of that great ideal.
Yesterday I took the liberty of saying to our retiring Chief Justice
that transformation will be complete when a white man can once again
become Chief Justice of South Africa, not because he is white, or
because he is a man, but because he is competent and the ideal
person to fill that eminent post. That is where transformation must
lead to, namely that all of us would have an equal opportunity to
make it right to the top.
EPD 20 MAY 2005 PAGE:84 of 180
Ever-growing numbers of South African citizens understand these
things. May the government do so too.
Mr D V BLOEM: And Bloem . . . [Interjections.]
Dr J T DELPORT: You too. You too. I am saying - and I am not
speaking to the hon member, I am not including him - more and more
people understand this. Eventually he will also understand it. My
wish is that the government will also come to understand these
Mr M J MALAHLELA: One of the most interesting aspects about politics
in South Africa, is that when the ANC says the sun sets in the west,
all political parties would say the sun sets in the east. If the ANC
says tomorrow there are seven days in a week, all political parties
would say, “Yes, we appreciate that there are days, but they are
only seven when they are counted backwards.” That is the essence of
politics in South Africa.
But for as long as you do not criticise the ANC you are not fit to
be in opposition, and that is why our people were so economical with
their votes in April. Because they understand economics, even if
they have not been to Unisa, because our people understand that for
a government to be able to appreciate and legislate on their behalf,
that government must be popular. And in essence they said, “We do
not want to be opposed.” For if they wanted to be opposed there
EPD 20 MAY 2005 PAGE:85 of 180
could have been an equal distribution of votes among our people,
which did not occur.
Now, the Minister talked about diversity, as she said in those
speeches. But the most important question is: What do you understand
by this diversity? Is diversity only related to colour? Is diversity
only related to being Indian, black and white? Or is diversity
related to gender? Yes, hon Camerer, in our case, as the ANC,
diversity also relates to the material conditions under which all of
us grew up.
The material conditions of a senior counsellor who was brought up in
Soweto are different from the material conditions of a senior
counsellor who was brought up in Gugulethu, or Langa or Sandton.
That is evidenced by a magistrate who sentences a woman to 10 years
in prison, because the circumstances under which we were brought up
- even if you are a judicial officer - shapes the way we think, the
way we sleep, the way we eat, the way we write, the way we prepare
our legal arguments.
There is no way that these material conditions cannot shape even the
highest Bench of the land, the Constitutional Court. This is an
analysis that we as the ANC are making. It is not about colour,
creed, Indian, white and gender. And we are consistent about that,
consistent about what we are saying. There is in no way that we can
transform in South Africa if we do not transform the mind-set, which
EPD 20 MAY 2005 PAGE:86 of 180
is a product of the material conditions under which we were all
This is science, not common sense. That is why our people accepted
the national democratic revolution, because our people understand
that a government is a political party organised administratively.
This is not common sense.
A political party that is organised administratively, that is shy
about its hegemony, in all levels of government, insults those who
have put them in power. That is why our people were so economical
with their votes, because they wanted their votes to be used to
legislate on their behalf. They wanted their votes to be used in
such a way that legislation that is passed in parliament responds to
their needs and aspirations.
A senior counsellor, which is the highest rank in the justice
system, goes to the Constitutional Court and argues on behalf of the
Minister of Justice that a woman who was raped by a policeman – a
policeman who was using our vans, who was using our petrol, with our
guns cocked with our bullets was not in distress, because the only
relationship she entered into with this policeman was one relating
to transport. What does that tell you?
What if a detour is taken and this senior counsellor applies for a
position as a judicial officer? The kind of judgments that the
EPD 20 MAY 2005 PAGE:87 of 180
judicial officer would produce would be symptomatic of the
conditions in which this judicial officer was born and bred.
One of the most interesting things about the DA is that it blows hot
and cold. The appointment of Justice Pius Langa as the Chief Justice
is excellent, as is the excellent appointment of Dikgang Moseneke as
deputy, but who made these appointments? It is the President of the
Republic of South Africa. And before he was sworn in as the
President of the Republic of South Africa, he was canvassing on an
ANC ticket, and he did not relinquish his membership of the ANC by
becoming the President, and this appointment is excellent.
In Business Day, on 3 May, there was a headline, which read, ”The
ANC Fixes the Bench”, that is a contradiction in terms. How can an
appointment by an ANC member be excellent, whereas on the other hand
you come across such a headline? We do not blow hot and cold as the
ANC, and that is why we are saying, to all people, whatever we are
saying as the party, we should be judged upon it.
That is why the national democratic revolution cannot be abandoned
today, because a certain journalist of human rights, Rhoda Kadalie,
expresses that the ANC’s NDR is misplaced. I think hon Swart
understands economics, that what political parties do is woo voters
of woods and nothing else. That is their trade.
An HON MEMBER: He doesn't know how!
EPD 20 MAY 2005 PAGE:88 of 180
Mr M J MALAHLELA: Yes, of course they do not know how.
This budget is an indication of how, as government, we respond to
the needs of our people. This budget is an indication of how we, as
the ANC, appreciating the fact that there are constraints within the
budget, want to transform this judicial system.
Chief Justice Pius Langa said, after his appointment, that the
independence of the judiciary will be maintained, and he is not
arrested. Hon Sheila Camerer would have arrested him when she was
deputy minister. He is not arrested. Rhoda Kadalie rubbishes the ANC
and she is not arrested. Hon Sheila Camerer rubbishes the ANC and we
are not arresting her, because as society, as the movement, we are
igniting the society to start talking to each other.
Talking to each other does not necessarily mean that we have to
agree. But talking to each other has a way of deriving from the
conditions under which we live, under which we were brought up. That
is why the ACDP would not quote Thami Mazwai when he says the panic
over the judiciary is misplaced. The circumstances under which Thami
Mazwai was raised are not similar to the circumstances any other
person might have experienced.
Those are different viewpoints, and that is why as the ANC we are
saying consciousness is determined by being. That is a category; it
is not common sense. You do not think on the basis that you were
EPD 20 MAY 2005 PAGE:89 of 180
born to think that way. You think on the basis of how you were
brought up, and that determines how society thinks. And that
determines how as the ANC we are talking about a shift in mind-set.
Mr D V BLOEM: That is political education . . . [Interjections.]
Mr M J MALAHLELA: That is why we would agree with the Minister and
hon Sibanyoni, that we legislate for the benefit of our people, for
we share a common destiny with them; we share a common path with
them. For they have been able to accept that revolutionary
dictatorship and counter-revolutionary dictatorship are by nature
opposites. But the former was learned from the latter. They do not
do that through the barrel of a gun. They do that by means of a
ballot paper. That is dictatorship of the proletariat, which is very
revolutionary. They do that by means of a ballot paper, not through
the barrel of a gun, because our people are scientific.
When the ANC took the step to legislate for the existence of the
Scorpions, everybody else complained that we were taking power away
from the police. They complained that we were doing this and that we
were concentrating power to who and whatever.
Interestingly, today, when we sit down and analyse, and do a
scientific analysis of the Scorpions, all political parties in South
Africa come back and say, “No, you cannot take away the Scorpions.”
That is why I said, if you can say there are seven days in a week,
EPD 20 MAY 2005 PAGE:90 of 180
they would say, “Yes, there are seven days in a week, but counted
backwards.” That is the nature of politics in South Africa. [Time
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT:
Chairperson, hon Minister, hon members, ladies and gentlemen,
obviously it’s very unfair for me to have to follow Joe Malahlela‘s
very careful analysis of the material dialectical situation in our
country. [Laughter.] But I will try my best and I am going to try
and elaborate on what he has said.
Firstly, let us thank everyone that has come to this debate to
listen to us. We will try and put the Minister’s speech and the
speeches of today together in one booklet, once again, and
distribute it so that people can see what has been said. Secondly,
of course, we can’t deal with all the issues that have been raised
here. We will keep engaging on those issues. We have taken notes and
we will deal with you in the committee and elsewhere, personally. If
you want to deal with some of those issues, we will do so.
Let me first thank my Minister for having indulged me for the last
year. She is more than a Minister. She has become a mother, a
guardian, a mentor and a whole lot of other things, which I have
needed, being youthful, young and full of zest, and so on . . .
EPD 20 MAY 2005 PAGE:91 of 180
The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: And having
too much energy!
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Too
much energy! And I have needed to be calmed down a little bit and so
on. That is not going to be part of my second part of my response to
Sheila, but then I will be myself again.
I would also like to thank the committee for the work they have
done, particularly for being patient with the department during the
past year as we have tried to get things to move. We promise you
that you will not have a single night’s sleep in the next four years
to come, and that you will be hectically busy. The year you had to
rest will be well spent.
We also want to thank the department, of course, for the excellent
work they have done. To those who are leaving and those who are
coming, we will make sure that what we have been able to do in the
past 10 years will only be strengthened. That’s all the thank yous.
Let me then also say something about this bit of gloom and doom that
sometimes comes through. I want to reiterate something that one
speaker spoke about. You know, I always find it fascinating that in
one court somewhere in the country, for example, someone is given
bail, which people feel should not have been given; or given a
sentence when that person should not have been given a sentence. The
EPD 20 MAY 2005 PAGE:92 of 180
headlines then read: “Justice system collapses”. I always find it
fascinating how the journalist and the subeditor actually write that
because if they had read such an article, they would have seen that
that was one court’s decision somewhere in the country. [Applause.]
I think what is important for us to remember is that every single
working day in this country thousands and tens of thousands of
people work for this justice department to make it work. And 99% of
the time they do their work and things are getting done every day.
Of course, there can be a debate on the level at which the work is
done. One is not trying to say that all the services are exactly the
same everywhere. But that is the whole idea about transformation and
changing a society. There is nowhere in the world – go the United
States and go to Sweden – where these things work perfectly, because
they are dealt with by human beings. Human beings make mistakes,
they have frailties. But the important thing is to put a proper
system in place and to try and make it better all the time.
I want to venture the opinion that in the past 11 years things have
changed dramatically. There is a long way still to go. But I will
say that we are doing very, very well and we want to thank those
persons in the justice system that work every day and go to work
under difficult conditions sometimes, and are able to produce the
things that they do. You will not find me or this government harping
EPD 20 MAY 2005 PAGE:93 of 180
about things. We will keep pushing you to do better but we will not
denigrate that which you are doing. [Applause.]
Mrs Camerer had a lucid moment today. She said that transformation
is the name of the game. Just smell the coffee, Mrs Camerer! It’s
been the game for 11 years and it’s going to be the game for a very
long time until we execute that transformation process. It’s not
only because I say so, it’s because the Constitution you helped
draft says so.
Transformation is on the agenda. If you listened to the speeches
here today, you will have seen that people have different views on
transformation. Regarding transformation, Mrs Camerer feels that
there is only one issue: race and gender. Race and gender,
representivity and diversity being reflected in our justice system,
is a vital component. But that’s not the only component.
The functioning of our system, the way the courts work and the way
their services are delivered comprise a fundamental issue of
transformation. It’s not an issue to be hidden somewhere such that
only a few lawyers must deal with it. Every single one of us is part
of the people that are the subjects of those services. We are
entitled to deal with that and make sure that it is transformed
EPD 20 MAY 2005 PAGE:94 of 180
Regarding the procedures that are followed, I am sick and tired of
hearing, “Oh, but we have done this for 300 years, and it’s worked
for 300 years.” Well, it’s worked for some people for 300 years, but
for the vast majority it hasn’t, and if you go and look at systems
elsewhere in the world you will find that our procedures are
archaic, outdated and outmoded. Our management style and systems are
something that comes from before the time of the ark – just slightly
before that. [Laughter.]
We have systems, structures and procedures that are just bad. They
are not bad because the ANC says so, they are bad for the proper
thing to do and that is to deliver services to people. So when we
talk about . . . [Interjections.] Don’t worry, I will get to that as
When we talk about transformation, we talk about every aspect: the
structure, procedures, the functioning and personnel - it’s the
whole package. Mr Burgess has touched on that. Once you have really
transformed that package and the thing is working more in line with
the Constitution, then you know it’s over. People ask me, and Dr
Delport asks often, “When is it over?” [Interjections.] It is a
valid question. That is a valid question. Let me tell you when it’s
over. It’s simple. We had a system here called apartheid. Everything
about it was wrong and bad: its morality, the way it functioned -
everything. We then had a Constitution through which we said: “This
is how we want to make it now.”
EPD 20 MAY 2005 PAGE:95 of 180
So when that system is as reflected in this Constitution, that would
be when we have reached the place we aim to reach. Because
everything we do in this country is guided by the Constitution and
has to be within the parameters of that Constitution. Therefore,
transformation only takes place within the parameters of that
Constitution. We are committed to constitutionalism, not because
someone came and told us that. We are the ones that pushed it and we
are the ones that went for a constitutional state in this country.
We went for it always fully knowing what it meant. It means that
there are certain checks and balances between the different levels
of government. And it means that there is clearly a very, very
political role for the courts to play because they have to make
judgments on policies and so on. That is a continuous debate we
have. But as far as that constitutionalism is concerned, we have
entrenched it. We will fight for it, we will keep it and we will
have it in this country. The transformation process will keep taking
place till we have reached what is in that Constitution, and it will
always take place within the parameters of the Constitution.
I want to say to Dr Delport, you know, on the broader issues that
you raised about inclusivity and all those things, I have no
problem. That is what the Constitution says and that is what we
stand for. But, you see, the fundamental flaw in your argument is
EPD 20 MAY 2005 PAGE:96 of 180
this: You quite correctly said that one must then not start
generalising about whites in the different areas you mentioned -
that is in sport and so on – and saying that a white person can’t do
this and only a black person can.
That’s quite correct, but where you fundamentally make your mistake
is at the end when you say wrewel [resentment] doesn’t equal racism.
Why do you generalise and say, regarding people who have things that
they are against and opposed to, that that never constitutes racism;
and say that it only constitutes something that they are unhappy
with? I agree with you: We make big mistakes where we take every
single problem that exists and then try and translate it into
racism. I agree with that and you mustn’t generalise it.
But, also, you mustn’t generalise and say that everything that is
opposed to what government and everyone is doing also does not equal
racism. It may very well at times equal racism. So we must be
careful. If you say that we must debate these things reasonably and
logically, and on the basis of what is right and wrong, and on the
basis of what is in the Constitution, and not generalise, I have no
It’s no use for us to generalise on these things. Some of the things
you said may very well be happening. But some of the reasons why
those things may be happening may not be what you said they are. We
need to be rational and make sure that we conduct these debates
properly and within the parameters that exist.
EPD 20 MAY 2005 PAGE:97 of 180
I want to say something about the Bills. You know, I am stunned by
you, Sheila. Sometimes you make me so angry, honestly.
[Interjections.] Sheila and I have a long history. Today I thought
to myself: Must I actually say something to Sheila or mustn’t I?
Should I just keep quiet and leave her to blissfully bumble on in
the way she has done, trying to get attention and so on about things
that are completely nonsensical; or should I say something?
I wanted to phrase it like this, and do you know why? You and I have
been able to accommodate each for 11 years. We have our little
idiosyncrasies and our weaknesses. We have accommodated and been
able to work with each other. I want to talk to you as two comrades.
An HON MEMBER: Have you recruited her?
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: The
next crossing of the floor is in September. So I am talking to
Sheila. [Interjections.] This debate about the transformation of the
judiciary didn’t start the other day with these Bills. It started in
1994-95 with Dullah Omar and in this justice committee. We have been
part of these debates. We have been debating now for 10 years and we
have done nothing. For 10 years we have been debating these Bills.
We received pieces of legislation from the first Minister, the late
Dullah Omar. We processed them through this committee and sent them
EPD 20 MAY 2005 PAGE:98 of 180
back to them and said, “There are a whole lot of problems that
people are raising; here they are”. We have gone to colloquiums and
everyone has raised their problems and said, “Here are the
problems.” We have gone to one debate, workshop and seminar after
another and these issues have been raised. These Bills then come to
Parliament. Here I am now talking about five out of the six Bills.
One Bill is new but the other five have been in this Parliament for
years – not just for days, but for years.
The Judicial Officers Amendment Bill from which the grievance
procedure comes arrived here in 2001. We in this committee debated
those Bills. We passed legislation and we debated the grievance
procedures. We sent Paul, Johan de Lange and others to go and
redraft these things. They may have been sent 300 or 400 times to
redraft that. We have sat with the Superior Courts Bill and the
constitutional amendment. We have gone through that for weeks and
weeks at a time, one draft after the other, coming back and forth
and so on.
We have sat with all these and debated them. We decided as a
committee, and when I say committee I am talking about the
opposition as well. They were part of that process. We decided that
we were going to deal with all the issues that had been raised but
which were not in the legislation. We dealt with those.
[Interjections.] That’s good and I agree with that as well.
EPD 20 MAY 2005 PAGE:99 of 180
Now we went through these processes and at no stage, as we were
drafting this legislation, did Mrs Camerer or anyone else say to us,
“Hey, but now you are undermining the independence of the
judiciary”, or even, “But there is a perception that it may be
undermined.” You didn’t even say to us that there was a perception
that it might be undermined. [Interjections.]
Mrs S M CAMERER: [Inaudible.]
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: At
no stage, Mrs Camerer. At all stages, what is in the Bills has
emanated from this committee. This committee has given the
instructions. If you go for once and read all those piles of
documents that this government has sent you to read in this
committee and all the drafts, you will find all the things there.
I want to say this to you: Human beings have many characteristics,
but there are three important ones: integrity, morality and
intellectual honesty. That is what your peers judge you on. The way
people interact with me relates to whether I undermine or take
shortcuts on those issues. This is the lesson I want to give to you:
You should be careful not to do that because you will undermine your
credibility with your peers around you. You cannot participate in
processes and not say things to us, and then get up later when it is
opportunistic to do so and go in a different direction.
EPD 20 MAY 2005 PAGE:100 of 180
Mrs S M CAMERER: They are unfounded.
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: By
all means. Listen at what I am saying to you; it’s your credibility
I am talking about. If you want to undermine your integrity, your
morality and your intellect, you must do so but you do it at your
own cost. You, as a parliamentarian, would like to be effective in
this Parliament. If you want us to take you seriously, then you
should conduct yourself in a way that lets us take you seriously.
[Interjections.] You must be very careful of this. [Applause.]
Haven’t you asked yourself once in the last while why Steven and all
the others that have been part of this process haven’t been jumping
up and doing what you do? Why haven’t you asked yourself that?
Mrs S M CAMERER: They are worried about the same things . . .
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: They
are not worried; they have not done what you have done. You have
heard Steve’s speech today. You see, you must ask yourself a
question when we are dealing with things, particularly when people
cannot point out to us what the problems are and constantly tell us,
“It’s the perception”. For you to jump on the bandwagon of those
perceptions when you were part of the process, I am just saying to
you: be very, very careful. [Interjections.]
EPD 20 MAY 2005 PAGE:101 of 180
The HOUSE CHAIRPERSON (Mr G Q M Doidge): Order, hon Deputy Minister,
your time has expired.
The DEPUTY MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT:
Thank you very much. [Applause.]
The Committee rose at 12:46.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
National Assembly and National Council of Provinces:
1. Introduction of Bills:
(1) The Minister of Environmental Affairs and Tourism:
(i) Marine Living Resources Amendment Bill [B 16 – 2005]
(National Assembly – sec 75) [Explanatory summary of Bill
and prior notice of its introduction published in
Government Gazette No 27489 of 22 April 2005.]
EPD 20 MAY 2005 PAGE:102 of 180
Introduction and referral to the Portfolio Committee on
Environmental Affairs and Tourism of the National Assembly,
as well as referral to the Joint Tagging Mechanism (JTM) for
classification in terms of Joint Rule 160, on 23 May 2005.
In terms of Joint Rule 154 written views on the
classification of the Bill may be submitted to the Joint
Tagging Mechanism (JTM) within three parliamentary working
2. Draft Bills submitted in terms of Joint Rule 159:
(1) Marine Living Resources Amendment Bill, 2005, submitted by
the Minister of Environmental Affairs and Tourism on 18 May
2005. Referred to the Portfolio Committee on Environmental
Affairs and Tourism and the Select Committee on Land and
1. Report of the Portfolio Committee on Public Service and
Administration on Budget Votes 10, 11 & 12, dated 16 May 2005:
EPD 20 MAY 2005 PAGE:103 of 180
The Portfolio Committee on Public Service and Administration,
having considered Budget Votes10, 11 &12, reports that it has
concluded its deliberations thereon.
2. Report of the Portfolio Committee on Correctional Services on
Solutions and Recommendations to Prison Overcrowding, dated 15
The Portfolio Committee having considered and adopted the above
report, reports as follows:
The problem of overcrowding within the South African prison
system has been identified as a key challenge, which negatively
affects the ability of the Department of Correctional Service
(DCS) to rehabilitate offenders.
The first objective of this report is to describe the nature,
the main causes and the consequences of overcrowding. The second
objective is to highlight some of the current initiatives to
address the problem of overcrowding in prisons. The third
objective is to identify specific recommendations by the
Portfolio Committee on Correctional Services to alleviate prison
EPD 20 MAY 2005 PAGE:104 of 180
C. The Nature of the Problem
As of June 2004 there were 187 065 offenders in South African
prisons. The 233 active prisons only have the capacity to
accommodate 113 551 offenders.
Of the total prisoner population, 132 315 were sentenced
offenders and the remainder (54 750) were unsentenced offenders
awaiting trial in the various prisons around the country.
Within the sentenced prisoner population there were 1 926 young
offenders under the age of 18 years. Within the unsentenced
prisoner population there were 2 232 unsentenced offenders under
the age of 18 years.
Overcrowding varies from region to region and between prisons.
Only 28 prisons out of the 233 active prisons hold the numbers
they were designed for, and the vast majority have many more
prisoners than they are able to cope with. The worst prison in
terms of overcrowding is Thohoyandou Female, with a capacity for
134 prisoners, but which holds 517 prisoners and is thus at 386%
The 10 most overcrowded prisons as at 31 March 2004 were:
Office of the Inspecting Judge Annual Report 2003/2004.
EPD 20 MAY 2005 PAGE:105 of 180
Prison Built to Actual number % Overcrowded
Lusikisiki 148 422 285%
Modimolle 341 988 290%
Mount Ayliff 85 250 294%
Middledrift 411 1 325 322%
Johannesburg 1 300 4 256 327%
Mount Frere 42 142 338%
Uniondale 24 82 342%
Umtata Med. 580 2 108 363%
Durban Med. C 671 2 480 370%
Thohoyandou 134 517 386%
Office of the Inspecting Judge Annual Report 2003/04
According to a recent report by the Inspecting Judge, the number
of awaiting trial detainees is dropping steadily2. In contrast,
however, the number of sentenced prisoners is increasing.
This is primarily due to the more effective utilisation of measures (some of which are highlighted in this report)
by police, prosecutors, magistrates, judges and heads of prisons to reduce the number of offenders who spend
time in prison while waiting for trial.
EPD 20 MAY 2005 PAGE:106 of 180
D. Main Causes of the Problem
The problem of overcrowding in prisons is due to a number of
complex factors, which include:
(a) Detection and conviction: One of the reasons given for the
increase in sentenced prisoners is the increased crime
combating initiatives of the South African Police Service
(SAPS). Since 1994, the Department of Safety and Security has
put in place numerous measures to improve crime
investigations. These include: the establishment of a
detective training academy and a focus on improving the
investigative skills of detectives; the consolidation of
specialised crime units in order to ensure a co-ordinated
approach to the investigation of crimes and the increased use
of technology (such as the automated fingerprint
identification system - AFIS) to assist in investigations.
The SAPS has benchmarked detection rates (their ability to
solve cases) for the first time in 2003/04. The target for
2004/05 is 31%. Detection rates fluctuate according to the
different categories of crimes. In addition, conviction
rates for serious crimes have improved over the last few
years. In the High Courts, the conviction rate improved from
85% in 2002/03 to 87% in 2003/04, which is much improved from
EPD 20 MAY 2005 PAGE:107 of 180
the 77% in 2000/01 and 2001/023. The conviction rate in all
the Lower Courts (Regional and District) has also improved
from 77% in 1999 to 85% in 20044.
(b) Awaiting trial detainees and bail: One of the reasons for the
large number of awaiting trial detainees is that they cannot
afford to pay the bail amounts set by the court. Sometimes
these amounts are quite small (e.g. R500 or less), but are
not affordable to many of the awaiting trial population who
therefore, in effect, remain in custody because they are
(c) Minimum sentences: The Criminal Law Amendment Act No. 105 of
1997 prescribes minimum sentences for certain serious
offences. This Act was originally intended as an interim
measure to be reconsidered after the expiry of 2 years. It
was extended after this 2-year period and thus remains in
effect. The Act establishes minimum sentences for a number
of offences, including categories of theft, drug dealing,
assault, rape and murder. It obliges a magistrate and judge
to impose not less than the prescribed minimum sentence
unless substantial and compelling circumstances justify a
lesser sentence. The effects of this legislation is marked
by the data furnished to the National Council on
National Prosecuting Authority Annual Report 2003/04.
EPD 20 MAY 2005 PAGE:108 of 180
Correctional Services which showed that the population of
prisoners serving 10-15 years increased by 204% since 1995
and the population of prisoners serving 20 years to life
increased by 325.90%.
(d) Changes to the parole and credit system: The ‘old’
Correctional Services Act (Correctional Services Act, No. 8
of 1958) provided that a prisoner could be placed on parole
after serving half of the sentence less any credits earned by
the prisoner. The general rule was that prisoners could be
released after serving ⅓ of their sentences. In addition,
life prisoners could be considered for parole after serving
10 years. This policy was later amended to 20 years.5 The
parole board would make a recommendation to the National
Advisory Council who would then make a recommendation to the
Minister of Correctional Service.
Chapter VII of the new Act (Correctional Services Act, No.
111 of 1998) deals with release from prison and placement on
parole. These sections came into operation on 1 October
2004. The new Act increases the minimum period of
imprisonment to be served before parole to half of the
sentence. In addition, a life prisoner will have to serve 25
years or completion of ⅔ of the sentence, whichever is
Written communication from the NPA.
EPD 20 MAY 2005 PAGE:109 of 180
shorter. Thus, no prisoner serving a sentence of life
imprisonment will be eligible for parole until a substantial
portion of the sentence is completed. Prisoners sentenced in
terms of the minimum sentencing legislation will only be
eligible for parole after completing /5 or 25 years of their
sentence. The effects of this Act will be to increase the
length of time that sentenced prisoners will spend in
(e) Recidivism (repeat offending) and its causes: There are no
official statistics regarding the recidivism rate in South
Africa. However this figure is estimated to be between 55%
and 95%6. High recidivism rates contribute to high crime
statistics as well as overcrowding within prisons. Key
causes of repeat offending may include:
Lack of employment opportunities after release from prisons.
Lack of skills which could be used to gain employment or
Negative perceptions and attitudes of the community which
reduces social re-integration.
E. The Consequences of the Problem
Muntingh, L (2001). After prisons, the case for offender reintegration. ISS monograph No. 52.
EPD 20 MAY 2005 PAGE:110 of 180
Overcrowding has important consequences both for the larger
community, the prisoners and correctional staff. These include:
(a) Human rights issues: Section 35(2)(e) of the Bill of Rights
encapsulated in the Constitution of the Republic of South
Africa, Act No 108 of 1996, states that prisoners have 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’. Overcrowding within
prisons means that it is impossible for the DCS to guarantee
(b) Health issues: Overcrowding and unsanitary conditions leads
to the spread of diseases, including serious transferable
diseases such as tuberculosis and HIV/AIDS. According to the
Inspecting Judge, the second highest cause of complaints by
prisoners related to complaints regarding the inadequate
provision of health care. The shortage of trained
professionals such as nurses and doctors to deal with the
large numbers of prisoners within the prison system means
that the quality of care given to ill prisoners is
inadequate. Within the prison system, nurses are employed by
Schoeman, M (2002). A classification system and an inter-disciplinary action plan for the prevention and
EPD 20 MAY 2005 PAGE:111 of 180
the DCS and are responsible for the provision of primary
health care. Doctors are employed by the Department of
(c) Effects on education, training, rehabilitation: The high
number of offenders within the prison system and overcrowded
conditions mitigates against the ability of the DCS to
provide adequate educational programmes, training programmes
and personal well-being programmes to prisoners. This
problem is particularly acute within the awaiting trial
detainee population, who generally are not offered any
education or training programmes as they are seen as a
transient group who will not spend enough time in prisons to
benefit from these services. The fact is, however, that many
awaiting trial detainees spend years in prison and thus the
absence of programmes for this group is extremely
problematic. Overcrowded conditions and the shortage of
sufficient professional staff means that very few sentenced
prisoners have access to education and training programmes
which would assist in ensuring that they become productive
citizens after release from prison. The shortage of
professional staff in the area of care and the high turnover
of professional staff, especially psychologists and social
workers, means that access to care programmes is also
management of recidivism. Doctoral Thesis. University of Pretoria
EPD 20 MAY 2005 PAGE:112 of 180
insufficient. The goals of the DCS to rehabilitate prisoners
and ensure that they do not reenter the prison system after
release is thus impossible to attain due to overcrowding.
(d) Consequences for security, discipline and staff morale:
Overcrowding within prisons results in the inability of DCS
to provide effective security to prisoners within overcrowded
prisons. Overcrowding exacerbates the spread of gangsterism
within prisons. Lock up hours are particularly problematic,
when all prisoners are confined in a limited space and it
thus becomes difficult in overcrowded conditions (ie 40
people in a cell designed for 15) for correctional officials
to monitor and control the situation within the cells.
Escapes are also less easy to prevent in overcrowded
conditions. The effect of overcrowding on staff morale is as
important. Correctional officials are powerless with regard
to the number of offenders that are sent to each prison and
overcrowding results in the inability of correctional staff
to control the environment within which they work. This
results in low staff morale, stress and high levels of
F. Initiatives to relieve overcrowding
The following are some of the initiatives which have been taken
to address the problem of overcrowding in prisons. It is widely
EPD 20 MAY 2005 PAGE:113 of 180
recognised that the solution to overcrowding does not reside
solely with the DCS. A Justice Crime Prevention and Security
(JCPS) Cluster Overcrowding Task Team was established to
identify blockages that result in overcrowding. Role-players in
this task team included the DCS, the Department of Safety and
Security, the Department of Justice and Constitutional
Development, the Department of Social Development and the
National Prosecuting Authority. The work of this team has been
taken over by the Integrated Justice System Development
Committee, its substructure the Case Management Task Team and
the Inter-sectoral Committee on Child Justice.
1. Prison Construction
Prison construction to deal with overcrowding encompasses a
variety of alternatives. Thus:
The Government may retain responsibility for the construction
of the prison.
Prisons may be privatised to a larger or lesser extent. In
other words, the private company may be responsible for
construction, design, building, management and operation of
the prison or some alternative mixture of these
One of the steps that has been taken by the DCS to alleviate the
initial start up costs of building prisons is to enter into
agreements with private companies. Two Public Private
EPD 20 MAY 2005 PAGE:114 of 180
Partnership prisons (PPPs) have been completed and are in
operation: the Mangaung Maximum Security Prison (Bloemfontein)
and the Kutama-Senthumule Maximum Prison (Louis
Trichardt/Makhado). In both these cases, the private operator is
responsible for the design, construction and operation of the
prison and the DCS pays a fee to the private operator for each
Some concern has been raised that the PPPs are not as cost
effective a solution to prison construction as initially
envisaged. The DCS is cautious about entering into further
partnerships. Other problems which have been raised by the
Portfolio Committee on Correctional Services include:
The high budgetary allocation for PPPs mean that there is
less money available for the DCS to spend on other
programmes, including improving the standard of care and
development in public prisons and expanding community
The DCS is losing trained and skilled personnel to the
public-private prisons as they are offering more competitive
Notwithstanding the above, studies have shown that the two
public-private prisons in operation are offering a better
EPD 20 MAY 2005 PAGE:115 of 180
service than public prisons both in terms of efficiency and
In 2002, a task team consisting of National Treasury, DCS and
the Department of Public Works reviewed public-private
partnership prisons. Key findings were that:
There is a need for the DCS to develop output specifications
for design and operation rather than input specifications.
It is necessary to ensure that public-private prisons are
developed in line with what the DCS can afford rather than an
ideal model. Budget constraints must be established at the
Comparable accounting standards must be developed for DCS of
Correctional Services’ prisons and public-private partnership
Comprehensive feasibility studies must be completed.
Clear rules should be adopted for movement of staff from the
DCS to public-private prisons.
According to the DCS, four new prisons will be built in 2005/06
using either PPP or conventional public works procurement. This
will provide an additional 12 000 bed spaces.
EPD 20 MAY 2005 PAGE:116 of 180
2. Release on bail in terms of Section 62(f) of the Criminal
The JCPS Team on Overcrowding has tried to ensure more effective
use of Section 62(f) of the Criminal Procedure Act, No. 51 of
1977 which allows for a sentencing officer to release an accused
on bail with the provision that the accused is supervised by a
probation officer or a correctional official (via the community
correction offices). It is hoped that more awareness of this
section will succeed in alleviating the fears of sentencing
officers regarding the granting of bail and thus ensure that
more accused are granted supervised bail instead of awaiting
trial in prisons.
3. Release in terms of Section 63A of the Criminal Procedure Act
According to Section 63A of the Criminal Procedure Act, No. 51
of 1977, a Head of Prison may apply to a court to release
certain unsentenced prisoners if:
The prison conditions will result in a material threat to the
human dignity, physical health or safety of the accused.
The accused is charged with an offence in which a police
official may grant bail.
EPD 20 MAY 2005 PAGE:117 of 180
The accused was granted bail by the court but could not
afford to pay the bail amount.
4. Pre-trial Diversion programmes
Diversion refers to the provisional withdrawal of a case against
an accused so that lengthy and costly criminal procedures are
prevented. Instead, accused are required to attend programmes
and/or perform some form of community service7. Although pre-
trial diversion programmes are used primarily for young
offenders, there are also other diversion programmes in
operation. These include victim-offender mediation and the
performance of community service as an alternative to
prosecution. Some of the criteria for diversion included in Part
7 of the Public Prosecutors Policy Document are:
First offenders in the majority of cases.
Willingness to repair damage caused by the crime.
Presence of a parent or guardian.
Armed robbery, murder and rape accused are excluded.
EPD 20 MAY 2005 PAGE:118 of 180
Between the age of 12-18 if a juvenile8.
A prosecutor identifies a candidate for diversion who is then
screened by the probation officer. The prosecutor makes the
final decision on diversion. The establishment of diversion
programmes is primarily the responsibility of the Department of
Social Development. However, Non-Governmental Organisations
(NGOs) such as NICRO also play an important role in this regard.
Diversion can also be applied at the sentencing stage.
Approximately 1 500 people were diverted each month on average
by the lower courts in 2004-05 in comparison to 1 250 in 2002-
5. Saturday Courts and Additional Courts Project
Saturday and Additional Courts Project was established as an
interim and emergency measure to keep the outstanding court
rolls under control and greatly assisted in ensuring that cases
were more speedily heard thus reducing the amount of time that
prisoners spent in prison before sentencing.
Dissel, A et al (1995). Sentencing options in South Africa. SJRP.
Policy Directives Part 7 & NICRO (2004). Juvenile offenders and their successful reintegration into society.
Submission to the Portfolio Committee on Correctional Service.
Statistics provided by the National Prosecuting Authority. Statistics for 2004/05 reflect only the first 6 months of
EPD 20 MAY 2005 PAGE:119 of 180
Before the end of September 2004, the project had 109 courts in
session on Saturdays plus 68 Additional courts. A total of 75
214 cases have been finalised on this project since its
implementation in 2001. These courts have, however, finalised
fewer cases during 2003-04 (23 649 cases) than in the previous
year (29 969). The reasons for this include10:
Scaling down of some offices as court rolls come under
control and there is less need for additional courts.
Scaling down of Saturday courts due to shortage of funds from
the Department of Justice and Constitutional Development and
uncertainty as to whether funds would be available for the
continuation of this project.
In some offices the project was used for bail applications
and as Child Abuse Courts rather than for trial matters.
The Saturday and Additional Courts project has been terminated
and the courts which were in operation ceased to operate from 30
September 2004. This is due to lack of further funding from the
Department of Justice and Constitutional Development for the
project. Reasons for the termination of the project given by
the Department of Justice and Constitutional Development
National Prosecuting Authority Annual Report 2003/04.
EPD 20 MAY 2005 PAGE:120 of 180
Too costly to sustain.
Abuse of the project with regard to overtime payments for
Viewed as an interim measure.
However, according to the NPA, the costs to the Department are
favourable in comparison to the number of cases that could be
finalised. In addition, control measures have been put in place
to reduce abuse of overtime. While the NPA agrees that this
project was seen as an interim emergency measure, in their
opinion, the existing high court rolls in specific areas
necessitate the continuation of the project, albeit on a smaller
6. Plea bargaining initiatives
The Criminal Procedure Second Amendment Act, No. 62 of 2001
regulates sentence bargaining. The aim of the Act is to allow a
prosecutor and an accused person to negotiate and enter into an
agreement. In terms of the agreement, the accused will plead
guilty to a specified charge. It also empowers the prosecutor
and an accused to negotiate a sentence to be imposed by the
court if the accused is convicted of the offence to which he or
she intends to plead guilty.
EPD 20 MAY 2005 PAGE:121 of 180
7. DCS initiatives
Both the Minister and the Deputy Minister of Correctional
Services have prioritised overcrowding in prisons. A national
overcrowding task team has been constituted. This team is
responsible for developing a Risk Management Plan on
overcrowding dealing with the two separate issues of sentenced
offenders and awaiting trial detainees.
Construction of additional prisons can only offer a partial
solution to the problem of overcrowding. Building additional
prisons is a costly exercise and must be supplemented by
alternative, more creative solutions. The Portfolio Committee
on Correctional Services supports the use of the above mentioned
measures to address the problem of overcrowding in prisons.
However, these measures should be accompanied by continuous
evaluation of their effectiveness in alleviating prison
overcrowding. The results of these evaluations should be
submitted on a regular basis to the Portfolio Committee on
The following conclusions and recommendations are made with
regard to resolving the problem of overcrowding in prisons:
EPD 20 MAY 2005 PAGE:122 of 180
1. Policy on awaiting trial detainees
Recommendation: The long-term policy on awaiting trial detainees
should be prioritised and requires urgent attention by
Government. The Portfolio Committee on Correctional Services
will interact with the JCPS cluster and with the relevant
Portfolio Committees on this issue.
Cabinet has identified the policy gap that exists in relation to
responsibility for the incarceration of awaiting trial persons.
2. Intersectoral co-operation
Recommendation: Measures should be taken to ensure that the
disbanding of the JCPS Cluster Overcrowding Task Team does not
result in a loss of intersectoral focus on the problem of
overcrowding. There should be proper transference of the work
of this disbanded team to the relevant intersectoral task team
and a commitment to retain the focus on prison overcrowding. In
addition the focus of the current team should be extended to 20
The current team is focusing primarily on awaiting trial
detainees. Studies have shown that 20 of the 427 courts around
the country deal with 25% of all cases. A decision has been
made to pilot the project in 6-8 of these courts around the
EPD 20 MAY 2005 PAGE:123 of 180
country. Head of prisons, magistrates, the police, social
workers and prosecutors are working jointly to address this
3. Rehabilitation to reduce recidivism
Recommendation: The Portfolio Committee on Correctional Services
supports the focus of the DCS on the rehabilitation of offenders
and the correction of offending behaviour as the most important
long-term solution to the problem of overcrowding. Reducing the
chance of re-offending will ensure that fewer offenders re-enter
the prison system after release from prison. The Portfolio
Committee will continue to constantly monitor the Department of
Correctional Services to ensure that the requisite resources are
correctly used to make rehabilitation the centre of the
The Department of Correctional Services needs to take the
consequential steps to give effect to its objective of
rehabilitation. This includes filling the critical posts (for
social and educators, for example) and the reorientation of its
4. Non-custodial sentences
EPD 20 MAY 2005 PAGE:124 of 180
The National Prosecuting Authority and other relevant
departments must market the concept of non-custodial sentencing
for appropriate offender types to all sentencing officials.
Sentencing officials should be made aware of the variety of
available options and be encouraged to use the sentencing
In South Africa, the different types of sentences that may be
imposed by the courts are set out in the Criminal Procedure Act,
Act 51 of 1977.11 These sentencing options include a number of
non-custodial options, ie which do not involve imprisonment of
the offender. These include12:
(a) Fines: The court may sentence a person to pay a fine. Fines
may be imposed on their own, but are usually given as an
alternative to imprisonment, ie if offenders do not pay the
fine, they go to prison. The court has discretion to decide
on the amount of the fine and the date on which it should be
paid. The court also has discretion to suspend the fine for a
fixed period on condition that the offender is not convicted
of the same offence during that time.
May, E. South Africa: Law And Criminal Justice. Paper completed for the National
Conference Of State Legislatures 19 to 23 July 2004.
EPD 20 MAY 2005 PAGE:125 of 180
(b) Community service orders: A community service order entails
the offender rendering free service to the community in his
or her leisure time. The aim of community service is to
ensure that the offender repays his or her debt to society
while maintaining a stable lifestyle.
(c) Correctional supervision: Correctional supervision entails
sentencing an offender to undertake certain activities in the
community. The Act does not specify these activities, but
leaves it to the Department of Correctional Services to
develop. The court also has discretion to attach various
conditions to correctional supervision, including that the
offender must remain indoors (at home) during certain times,
work a certain number of hours in a community in his or her
free time, pay compensation to the victim or participate in a
programme such as a training programme.
According to Sloth Nielson13, the vast majority of correctional
supervision sentences are conversions of direct imprisonment by
the Department of Correctional Services and are not sentences
meted out directly by the courts.
Overview of policy developments in South African Correctional Services 1994-2002 (CSPRI Research Paper
Series, No. 1, July 2003).
EPD 20 MAY 2005 PAGE:126 of 180
Some of the problems that magistrates have cited for not using
alternative sentencing options, more specifically correctional
High caseloads of community corrections staff and thus fear
Shortage of probation officers and the delays that courts
experience in receiving pre-sentence reports, which means
that sentencing officers have little information on which to
base their sentencing decisions.
Inadequate management of the alternative sentencing system.
Lack of resources for community corrections, including
shortage of vehicles.
(d) Compensatory orders: When a court imposes a sentence, it may
direct that an offender pay money to the victim of the crime
for any damage caused to the property of the victim. A
sentence of imprisonment or a fine may be suspended on
condition that an offender pays compensation to the victim.
However, the South African courts do not often use this
sentencing option. A compensation order will usually only be
given for loss of property and not for other losses such as
loss of income, pain and suffering.
(e) Suspended sentences: Upon conviction of an offender, a court
may impose a sentence and suspend the operation of that
sentence for a certain period on condition that the offender
EPD 20 MAY 2005 PAGE:127 of 180
does not commit further offences of a particular kind within
the specified time-frames. The suspension of sentences apply
to prison sentences as well as fines. This means that if the
court imposes a prison sentence or fine, and then decides to
suspend that sentence, the offender will not be liable to
serve the period of imprisonment or pay the fine, unless he
or she violates the conditions of the suspension.
Sentencing officials thus make insufficient use of alternative
sentencing options to incarceration. The Criminal Procedure
Act, No. 51 of 1977, gives sentencing officers wide discretion
to suspend and postpone sentences and to use innovative options
as alternatives to imprisonment. There is no need to change the
laws with regard to sentencing. Instead, the focus should be on
ensuring that sentencing officers use the wide variety of
options available to them. One way to increase the use of
alternative sentencing options is to increase awareness of these
options. More importantly, attempts must be made to change the
mindset of sentencing officials who often regard imprisonment as
the safe and only sentencing option.
5. Community Corrections
Recommendation: It is imperative that DCS reprioritise its
budget to ensure that more money can be provided to community
corrections. The DCS should also market community corrections as
EPD 20 MAY 2005 PAGE:128 of 180
an alternative non-custodial sentencing option. This can only
effectively occur once the community corrections offices are
capacitated to function better, which will require additional
resources, including personnel. Conversions of direct
imprisonment to correctional supervision by the Department of
Correctional Services is encouraged in appropriate cases.
As of June 2004, there were 53 566 offenders under correctional
supervision of which 20 673 were probationers (who are serving a
sentence of correctional supervision) and 32 883 were parolees.
There is a total of 21 community corrections offices countrywide
and 189 satellite offices.14 There are a variety of ways that a
person can serve a sentence of correctional supervision,
As a sentence handed down by the court.
A person may have his or her sentence of imprisonment
converted to correctional supervision by the Commissioner of
Correctional Services or the Parole Board, or by the courts
if applied for by the Parole Boards or the Correctional
Budget constraints have meant that community corrections has
been short staffed, with limited facilities to ensure the
According to the Annual Report of the DCS (2002 to 2003).
EPD 20 MAY 2005 PAGE:129 of 180
adequate supervision of probationers and parolees. This results
in abscondments from the community correction programmes.
Recommendation: The use of diversion away from the criminal
justice system should be encouraged for adult as well as
juvenile offenders in appropriate cases. The Portfolio
Committee on Correctional Services encourages the Department of
Justice and Constitutional Development to interact with the
provincial departments of Social Development to ensure a more
efficient system of diversion from the criminal justice system.
Diversion away from the criminal justice system can be used
effectively for certain categories of adult offenders. The use
of diversion by prosecutors should be encouraged as the
statistics described illustrate that the use of diversion has
not increased substantially since 2002-03.
7. Education on diversion, bail and plea bargaining
Recommendation: All relevant role-players must receive training
on the full range of diversion, bail and plea-bargaining
EPD 20 MAY 2005 PAGE:130 of 180
The police, magistrates, prosecutors and judges should all be
educated on the various legal and procedural options that they
have at their disposal to ensure that accused do not have to
spend lengthy periods in overcrowded prisons. In addition to
some of the measures detailed above (ie diversion, plea
bargaining and use of the bail provision of section 62(f) of the
Criminal Procedure Act), Section 59 of the Criminal Procedure
Act, for example, allows a police official (in consultation with
the investigating officer in charge of the case) to grant bail
to an accused who is charged with a less serious crime. In
addition, the R1 000 bail project is ongoing in that accused
persons who are not able to pay bail set under R1000 are bought
back to court and the determination of a bail amount is
revisited by the court. The full range of options should be
identified and all role-players trained on the use of these
8. Saturday Courts and Additional Courts project
Recommendation: It is recommended that consideration be given to
the reinstatement of the Saturday Courts project based on an
evaluation of the efficacy of the project in terms of reducing
overcrowding. The Department of Justice and Constitutional
Development and the National Prosecuting Authority should report
to the Portfolio Committee on this issue and if it is shown that
the dissolution of the project will negatively affect
EPD 20 MAY 2005 PAGE:131 of 180
overcrowding in prisons, the Department of Justice and
Constitutional Development should make funds available for
continuation of the project until the end of the 2004-05
financial year. In the interim, steps should be taken to ensure
a longer-term solution to the problem of high court rolls,
including the establishment of additional permanent courts and
9. Powers of release
Recommendation: While the use of legislative powers of release
of prisoners is a short-term solution, the Portfolio Committee
on Correctional Services supports use of this option by the
Minister and the President for specific categories of offenders.
The periodic release of certain categories of offenders is an
option that is currently used to alleviate prison overcrowding
on a short-term basis. There are a number of available options
in this regard, including:
The Minister of Correctional Services is empowered by section
81 of the Correctional Services Act, No 111 of 1998, to
release certain categories of prisoners if in the opinion of
the Minister, overcrowding has become a crisis which
negatively effects the prison population. The Minister must
act in consultation with the National Council for
EPD 20 MAY 2005 PAGE:132 of 180
Correctional Services. Prisoners who are released using
section 81 of the Act may be released under community
corrections. According to the White Paper of the DCS, this
section of the Act may also be used under certain conditions
to release awaiting trial detainees who have been granted
bail but cannot afford to pay due to the prisoner’s personal
social conditions. In September 2003, 7 000 sentenced
offenders had their parole dates advanced by 9 months.
The President of South Africa has the power, according to
Section 82 of the Correctional Services Act, No. 111 of 1998,
to place sentenced prisoners on correctional supervision or
parole or to remit any part of a prisoner’s sentence. The
President also has the power to pardon or reprieve offenders.
The power of the President of South Africa to pardon people
convicted of crimes is outlined in Section 84(2)(j) of the
Constitution of the Republic of South Africa (Act 108 of
Recommendation: Electronic monitoring is currently under
consideration by DCS in the medium to long term for use by
parolees. However, in terms of overcrowding, electronic
monitoring can also be used for probationers and awaiting trial
detainees. Other uses of technology to alleviate overcrowding
EPD 20 MAY 2005 PAGE:133 of 180
should be considered, including linking prisons and magistrates
courts by video screens to arrange the automatic remand of
criminal cases instead of physically transporting awaiting trial
detainees to and from court. The Portfolio Committee supports
the stance of DCS in terms of its focus on long-term
rehabilitation of offenders to reduce the chance of reoffending
behaviour rather than on short-term solutions.
The DCS initiative on the use of electronic monitoring for
parolees has been put on hold for the medium to long term for
the following reasons:
The project needed to be redesigned in terms of the PPP
A feasibility study on the available technology at the time
showed that electronic monitoring was only effective in 26%
of urban areas and 19% of rural areas in the country due to
its reliance on electricity and telephone lines. These areas
did not match up to the existing offender population and thus
the needs of the DCS.
The DCS does not believe that it should release people on
parole with electronic monitoring without ensuring that their
behaviour has been effectively corrected. The main focus of
DCS is thus on its core business of rehabilitating offenders.
EPD 20 MAY 2005 PAGE:134 of 180
New technological developments (ie developments in satellite and
wireless technology) have meant that the DCS can reconsider its
position in this regard. It is currently considering the costs
involved in utilising these new technologies. While
consideration is thus been given to electronic monitoring, the
DCS will implement this parallel with substantial efforts to
improve the rehabilitation and correction of offenders and
A project to video link courts to prisons is under consideration
by the National Prosecuting Authority and other role-players.
11. Prison Construction
Recommendation: The Portfolio Committee on Correctional Services
will continue to hold discussions with the Department of
Correctional Services on the relative costs and efficiencies of
public-private partnership (PPP) prisons in comparison to state-
owned prisons. The Portfolio Committee will visit the existing
PPP prisons to assess the service provided by these prisons in
comparison to conventional state-owned prisons.
The debate on the value of PPP prisons in comparison to
conventional prisons is ongoing. The DCS is currently exploring
options to renegotiate the existing contracts in order to make
EPD 20 MAY 2005 PAGE:135 of 180
them more economical or at least to ensure that any future
contracts are more affordable to the DCS.
Recommendation: All relevant stakeholders including the
Department of Social Development and the Department of Education
must ensure that they provide sufficient alternative residential
facilities for both awaiting trial and sentenced children.
While the number of children awaiting trial in prisons around
the country does not greatly add to the overcrowding of prisons
generally, those prisons where awaiting trial children are kept,
such as Pollsmoor, often suffer from overcrowding. More
importantly, the principle remains that no children under the
age of 18 years should be kept in DCS prisons while awaiting
The Child Justice Bill will assist in ensuring that no children
are kept in prison while awaiting trial. However,
implementation of the Bill once it is passed by Parliament will
require that there are processes in place to achieve this
objective as well as sufficient alternative facilities for
children who may require residential placement.
EPD 20 MAY 2005 PAGE:136 of 180
The Department of Social Development has an important role to
play in ensuring that no unsentenced children under the age of
18 years are kept in prison while awaiting trial. In this
regard, the Department was tasked with the responsibility of
establishing secure care facilities in each of the 9 province to
house children under the age of 18 years who have been accused
of crimes and are not immediately released into the care of
their parents or have not received bail. Secure care facilities
are targeted at children under the age of 18 years who may pose
a danger to the public or to themselves. It is thus a facility
with security features that also offers therapeutic services.
These facilities cater only for awaiting trial children.
There are currently only 11 secure care facilities across the
country. Each province has at least 1 secure care facility and
Gauteng and the Northern Cape each have 2 facilities. An
additional 4 facilities are to be built in the Eastern Cape,
Free State, Kwa-Zulu Natal and Western Cape provinces. In 2003,
there were approximately 1700 children awaiting trial in secure
According to the Department of Social Development they aim to
cater for 3 145 children who are awaiting trial in secure care
EPD 20 MAY 2005 PAGE:137 of 180
facilities or places for safety by 2005 . It is the
responsibility of the Department of Social Development to ensure
that they have sufficient secure Care facilities around the
country to ensure that no children need to stay in prison while
In addition, a range of alternatives should be available to
sentenced children, other than DCS correctional facilities. The
absence of sufficient reform schools around the country is
identified as a problem. Reform schools are schools maintained
for the reception, care and training of children sent in terms
of the Criminal Procedure Act, No. 51 of 1977 or transferred
under the Child Care Act, No. 74 of 1983. There are residential
institutions where children who have been sentenced by courts of
law are placed.
Reform schools are managed by the Department of Education.
There are only 4 reform schools in the country, 3 in the Western
Cape (Faure Youth Centre, Ottery Youth Centre and Denovo) and 1
in Mpumalanga (Ethokomala Reform School). The Mpumalanga school
The Department of Social Development has 16 places of safety around the country. These
facilities are not meant to be used for children accused of crimes. However, because of
limited secure care facilities, they are used where necessary. In 2003, there were
approximately 300 children awaiting trial in places of safety.
EPD 20 MAY 2005 PAGE:138 of 180
has the capacity to cater for 160 children and the Western Cape
schools have capacity for 360 children. The 7 remaining
provinces have no capacity to cater for sentenced children in
This results in numerous problems, including the fact that
magistrates are sentencing children to reform schools in the
absence of these facilities. This means that children spend
time in prisons or secure care facilities while waiting for
places in one of the four reform schools in the country. The
other problem is that children from other provinces who do get
placed in these schools are far away from their families and
support systems. In addition, placement of out of province
children in the Western Cape schools is hindered by the
requirement of the Western Cape Department of Education that
children are accompanied with a care budget from their
respective province, which has not normally been budgeted for by
Recommendation: Priority should be given to ensuring that less
women are incarcerated and that diversion and alternative
sentencing measures are applied where possible.
Presentation to the Justice Portfolio Committee on the implementation implications of the Child Justice Bill for
EPD 20 MAY 2005 PAGE:139 of 180
While there are far fewer women in prison than men, the
implications of imprisonment for women (many of whom have
children outside and sometimes inside of prison) and their
families are often disastrous. All attempts should be made to
divert accused women from the criminal justice system or ensure
that they have an opportunity to serve their sentences within
the community under correctional supervision.
The Portfolio Committee on Correctional Services will allow the
DCS a period of 12 months to interact with the other departments
mentioned in the recommendations and to implement these
recommendations, where possible. The Portfolio Committee on
Correctional Services will follow up and monitor progress in
implementation of the recommendations
Report to be considered.
May, E. (2001). Criminal Procedure Second Amendment Bill [B45-
2001]. Research Unit of the Parliament of South Africa.
the national and provincial Departments of Social Development.
EPD 20 MAY 2005 PAGE:140 of 180
May, E. (2004) South Africa: Law And Criminal Justice. Paper
completed for the National Conference Of State Legislatures 19
to 23 July 2004. Research Unit of the Parliament of South
Office of the Inspecting Judge Annual Report 2003/04.
National Prosecuting Authority Annual Report 2003/04.
South African Police Service Annual Report 2003/04.
Department of Correctional Services: Draft White Paper on
Corrections in South Africa December 2003.
Child Justice Project (2002). A situational Analysis of reform
schools and schools of industry in South Africa: undertaken by
the Child Justice project in consultation with the Department of
Education to inform the planning for the implementation of the
Child Justice Bill.
Presenttation to the Justice Portfolio Committee on the
implementation implications of the Child Justice Bill for the
national and provincial departments for Social Development.
3. Report of the Portfolio Committee on Correctional Services on
the two fire incidents at Pollsmoor Management Area, which led
to the death of six inmates, dated 22 February 2005:
EPD 20 MAY 2005 PAGE:141 of 180
The Portfolio Committee on Correctional Services, having
considered and adopted the above-mentioned report, reports as
On 23 August 2004, there was a fire at Pollsmoor Admission
Centre in which 3 offenders died and 3 were injured. On 29
October 2004, there was a second fire at the Pollsmoor Admission
Centre where 3 offenders died.
The Portfolio Committee on Correctional Services has already
taken the following action with regard to the 2 incidents:
(a) On 27 August 2004, the Regional Commissioner of the Western
Cape and Pollsmoor Management Area Commissioner provided the
Portfolio Committee with a verbal report on the incident of
23 August 2004.
(b) On 2 November 2004, members of the Portfolio Committee
visited the Pollsmoor Admission Centre to inspect the section
and the cell in which the second fire occurred.
(c) On 9 November 2004, the Committee called the Regional
Commissioner of the Western Cape and the Pollsmoor management
team to a meeting to present the findings of the reports of
the two incidents.
EPD 20 MAY 2005 PAGE:142 of 180
The objective of this report is to:
(a) Identify key issues of concern to the Portfolio Committee
arising from the Department of Correctional Service’s (DCS)
reports of the two incidents.
(b) Recommend to DCS management, further action that should be
taken prevent a recurrence of an incident of this nature.
(c) Identify further steps that will be taken by the Portfolio
Committee to prevent a recurrence.
1. Incident of 23 August 2004
On 23 August 2004, three offenders died as the result of
injuries sustained from a fire that was set in their cell
(Pollsmoor Admission Centre, Section D2, cell 227). According
to the report completed by the DCS, the fire was started by an
inmate who had sent a suicide note to another prisoner stating
that he wanted to kill himself, citing ill treatment by a
correctional official as the reason. However, the report did
not reveal any evidence of prior complaints by the offender
registered with the independent prison visitor, the social
worker or the unit manager. Correctional officials, when alerted
about the fire, were hampered in their efforts to save the
EPD 20 MAY 2005 PAGE:143 of 180
deceased as the windows and grill of the cell had been
obstructed with mattresses.
Offenders in a nearby cell (cell 235) set their cell alight
after cell 227 was already burning and while the offenders in
that cell were being removed. The three offenders in cell 235
sustained injuries from this fire.
The DCS appointed an internal investigation team from the
Western Cape Regional Office Inspectorate Unit to investigate
the circumstances under which the three offenders died and the
other three offenders sustained injuries. The final report
compiled by this investigation team contains findings and
recommendations. The findings contained in the report indicate
that according to the DCS, no correctional service official can
be held directly responsible for the death of these offenders as
the fire was started by the offenders themselves in an attempt
to commit suicide. However, the report also indicates that a
number of correctional officials contributed indirectly to the
Key recommendations contained in the report include:
(a) That the DCS investigate the feasibility of obtaining fire
EPD 20 MAY 2005 PAGE:144 of 180
(b) Prescribed procedures for handling of complaints and requests
by prisoners must be adhered to by correctional staff.
(c) There is an urgent need for implementation of a disciplinary
system for offenders.
(d) Prominent gang members should not be used as cleaners.
(e) Measures must be put in place to ensure that members who are
on duty in particular sections are physically present and
perform their duties according to the day list.
(f) That a correctional official be transferred to another
section and that formal disciplinary action is taken against
both correctional officials.
(g) That the acting Head of the Centre, is awarded a merit
certificate for his role after having being alerted about the
fire and that two offenders who assisted in putting out the
fire be considered for special remission of sentence.
2. Incident of 29 October 2004
On 29 October 2004, three offenders died as a result of injuries
sustained from a fire that was set in their cell (Pollsmoor
Admission Centre, B2 Section, cell 551). A preliminary report
by the DCS could not establish what caused the fire in cell 551.
It has been recommended by DCS that a full investigation be
initiated, involving agencies external from the DCS.
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Preliminary findings contained in the report reflect that the 3
deceased offenders were members of the 26 gang. During the week
prior to 29 October 2004, a series of attacks and revenge
attacks occurred between the 26 and 28 gangs and on the 28
October 2004, these 3 offenders were attacked while on exercise.
They were taken to the prison hospital and later placed in cell
551 in B2 section. On 29 October 2004, they again asked to be
taken to the prison hospital and on their return they were
locked in the cell. At about 4:30pm on that day, a correctional
official was alerted that there was a fire in the cell.
Key recommendations contained in the preliminary report include
(a) Urgent attention is given to the following failures in proper
operational supervision in the prison including:
Uncontrolled movement of offenders.
Improper attendance to complaints and requests of offenders.
Improper or lack of security.
Mixing of different categories of offenders (maximum
sentenced with those sentenced to a few years).
Unmanned sections during night shifts.
Inadequate control of unit managers.
(b) A full investigation is initiated, involving external state
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(c) The Unit Manager of A Section be removed pending a full
investigation into allegations of drug smuggling to offenders
in A Section and siding with 26 gangs.
C. Key issues of concern
The Portfolio Committee on Correctional Services identifies the
following issues of concern, arising from the two reports.
Overcrowding is a serious problem within the Admission Centre.
The Admission Centre is supposed to hold 1 619 offenders. On 9
November 2004, there were a total of 4 061 offenders in the
Admission Centre. Severe overcrowding exacerbates the problem
of gangs, drug smuggling and corruption amongst staff. The
Admission Centre has communal cells with up to 75 offenders in a
cell and most of the single cells hold 3 offenders.
The problem of overcrowding is dealt with at provincial level.
A committee meets monthly to discuss reports from each area
commissioner on levels of overcrowding in the prisons. All
attempts to down-manage overcrowding are exacerbated by the fact
that the inflow from the courts is always higher than the
outflow from the prisons.
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2. Staff Shortages
The report of the incident of 23 August 2004, states that there
was only one member of staff controlling offenders at the church
services at which an offender was assaulted. In addition, the
Portfolio Committee has previously identified the shortage of
social workers at Pollsmoor as a concern, and the fact that at
least one of the offenders may have had suicidal tendencies
should have been recognised by the social workers.
The preliminary report reflects that the incident of 29 October
2004 was probably as a result of incidents emanating from the
previous weekend. The report identifies that there was
insufficient staff on duty over that weekend (including no night
staff in the A, B1 and B2 sections) which meant that gang
problems, which arose on that weekend, were not appropriately
Staff shortages (and the problem of severe overcrowding) within
Pollsmoor clearly played a role in both incidents. Insufficient
staff has the following implications:
(a) Inability to control gang activity and drug smuggling.
(b) Inability to provide sufficient activities to keep offenders
busy including recreational and training activities. The
EPD 20 MAY 2005 PAGE:148 of 180
other problem in this regard is the fact that there are
insufficient facilities available.
(c) Inability to offer sufficient developmental activities such
as adequate social work services to monitor the psychological
well being of offenders.
(d) Severe shortages of staff on the weekends due to the 5-day
establishment and budget cuts to overtime.
According to the DCS, staff shortages at Pollsmoor Management
Area as a whole are being addressed by the regional and national
3. Gangs and Drugs
Gangs and drugs are a serious problem in the Admission Centre.
In both incidents, the deceased were members of gangs. In the
incident of the 23 August the deceased were members of the 28
gang and in the incident of the 29 October, the deceased were
members of the 26 gang. According to the DCS, approximately 90%
of all offenders in Pollsmoor are members of gangs; drugs are
widely available in the sections where the fires occurred; a
number of correctional officials are currently in prison and on
suspension for involvement in these activities. In addition, a
recent search of the section revealed a total of 89 knives and
other sharpened objects in the cells.
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According to the DCS, the nature of prison gang activities is
changing. The focus is now more on economic activities,
particularly selling drugs. In part because of the success of
the prosecuting authorities, many ‘high flyers’ are now entering
the system and these experienced gang leaders concentrate on
expanding their drug networks within the prison system. New
gang members are easily recruited as being in a gang gratifies
their need to belong within the prison system. Many also join
gangs for basic survival within the prisons.
The more sophisticated gang leaders also target correctional
staff members. Sometimes correctional staff members work with
the gangs for their own survival. Many correctional officials
are financially vulnerable, relatively young and inexperienced
and are thus easily corruptible especially by more experienced
There is a serious problem in the Western Cape with regard to
the close relationship between prison and civilian gangs. The
geographic location of Pollsmoor, which is easily accessible to
the communities around Cape Town, exacerbates this problem.
Offenders gain access to drugs from correctional staff and
members of the public who visit offenders. In addition, about
300 offenders leave the prison each day to attend court and
often drugs and weapons are accessed at the courts.
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Measures that have been taken at Pollsmoor to address these
(a) Searching offenders on return from courts. This is
complicated by the fact that often drugs and other items are
swallowed and are thus undetectable by regular searching
(b) Searching correctional officials: Searching needs to be done
strategically rather than routinely as otherwise staff
members formulate mechanisms to bypass this procedure.
(c) Routine and surprise searches of cells.
(d) Searching members of the public who visit offenders.
(e) Ongoing cooperation with Crime Intelligence (SAPS) and the
National Intelligence Agency (NIA).
(f) Transferring gang leaders to other prisons in areas outside
of their local networks: Pollsmoor has transferred 160 gang
leaders to Kokstad Prison.
(g) A process of consultation is in progress to identify measures
to control gang activity.
4. Security Equipment
There are no x-ray scanners to check offenders and staff when
they enter the prison complex. In addition, the CCTV cameras
that are on the premises have blindspots.
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According to the DCS, panic buttons will be installed in all
cells. The needs of the Pollsmoor Management Area with regard
to security equipment have been registered with the Facilities
Section at Head Office. Pollsmoor Management Area is developing
a turn-around strategy, specifically geared toward security
problems in the Admissions Centre in an attempt to deal
holistically with the problem.
5. Management of the Admissions Centre
According to the DCS, the position of Head of the Admissions
Centre has been filled by an acting head since October 2003.
The post has been advertised and is in the process of being
Serious problems are noted in both reports with regard to
management and internal communication in the Admissions Centre.
Some of these issues include:
(a) Complaints from prisoners are not handled procedurally, which
causes anger and resentment amongst the offenders.
(b) Staff members seem to be able to leave their posts without
ensuring that alternative arrangements are in place.
Management seems to be unaware of what the staffing situation
is at any one time in the various sections.
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(c) When there are problems, offenders are moved between sections
and from cell to cell without addressing the root of the
problem and without clear co-ordination between managers.
According to the DCS the training of correctional officials is
currently under review in order to ensure that the training
offered is in line with the new White Paper. Management
training has already been reviewed and a tender has been given
to the University of Tswane (Pretoria Technikon), to train
junior and middle managers across the country.
In addition, both reports identify general problems in the
management of the Admissions Centre as needing urgent attention
6. Composition and Terms of Reference of the Investigation Team
The investigation teams consisted of DCS staff members of the
Western Cape Regional Office Inspectorate Unit.
The terms of reference of the investigation team were to:
(a) Determine the cause of the unnatural deaths of offenders.
(b) Recommend measures to prevent a recurrence of these
(c) Determine the loss to government.
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The final report of the incident on 23 August 2004 will be
supplemented by the SAPS crime scene report. The report of the
incident on 29 October 2004 is a preliminary report and contains
a recommendation that an independent external body be
responsible for further investigation of this incident.
7. Merit Certificate
The report on the incident of 23 August 2004 recommends that the
acting Head of Prison, be given a merit award for his actions
after the fire. It is up to the National Commissioner and the
Minister of Correctional Services to decide whether this non-
monetary recognition will be awarded.
It was noted by the Committee that according to the Correctional
Services Act, No. 111 of 1998, it is the duty of correctional
services staff to provide a secure environment for offenders.
While the acting Head may have acted meritoriously after the
fire, it is his responsibility to ensure that no offenders under
his care die in circumstances that could have been prevented.
8. Counselling for Staff and Inmates
According to DCS after the incident of 23 August 2004, the
Employee Assistance Programme (EAP) provided counseling to all
EPD 20 MAY 2005 PAGE:154 of 180
staff on request. All available social workers were deployed to
the Admission Centre for access by offenders. After the
incident of 29 October 2004, the DCS worked in liaison with an
external psychologist to debrief personnel and a number of staff
members were put on stress leave. All offenders involved in the
incident were debriefed by social workers.
9. Lack of co-operation from Independent Prison Visitor
The Independent Prison Visitor (IPV) for the section did not co-
operate with the investigative team when requested to do so
after the incident of the 23 August 2004. She has subsequently
The DCS has stated that measures to encourage whisteblowing on
corrupt staff members have been ineffective. DCS members are
generally scared of informing on each other as they live in very
close proximity to each other. Measures that have been put in
place for offenders to notify the DCS of crimes both inside and
outside of the prison (by using the stop crime letterbox, for
example) have also been ineffective. Offenders do not trust
that their identity will be protected and that the information
will reach the right people.
11. Action taken against Officials
EPD 20 MAY 2005 PAGE:155 of 180
The reports identify certain correctional officials who may be
indirectly implicated in the unnatural deaths of the offenders.
The reports also identify staff members who handled complaints
and incidents improperly. In addition, the reports identify
certain correctional officials who may be implicated in corrupt
According to the reports it has been recommended that two
correctional officials be transferred. The Area Commissioner has
decided to suspend one of these officials pending the final
The Portfolio Committee is concerned that action against
officials may be too lenient. Transfers will not rectify the
problem. More severe disciplinary action should be taken if
correctional officials are found guilty of any of the charges.
In addition, where appropriate, formal criminal charges should
be lodged against officials guilty of corruption.
D. Recommendations to DCS Management
The Portfolio Committee on Correctional Services makes the
following observation and recommendations:
EPD 20 MAY 2005 PAGE:156 of 180
(a) After two serious incidents in which six people lost their
lives, it is clear to the Portfolio Committee that the
management of the Admission Centre of Pollsmoor at that time
was not capable of running this institution effectively. It
is further clear that the Regional Management lacked the
capacity either to anticipate the events that took place or
adequately to account for what transpired after the events.
Taking into consideration the nature of the Pollsmoor
Correctional Centre, the Portfolio Committee thus recommends
that managers with proven track records be deployed to this
(b) The Department should, as a short -term solution, explore the
possibility of outlawing cigarettes, lighters and matches
especially in single cells.
(c) The external investigative team be deployed immediately to
investigate the incident of 29 October 2004 and that this
final report be submitted to the Portfolio Committee after
it has been given to the National Commissioner and the
Minister of Correctional Services.
(d) Consideration be given to establishing an external
investigative team to reinvestigate the incident of 23 August
2004 and that this final report be submitted to the
EPD 20 MAY 2005 PAGE:157 of 180
Portfolio Committee after it has been given to the National
Commissioner and the Minister of Correctional Services.
There seems to be some concern (highlighted by the Regional
Commissioner) that the reasons for this first fire are
unclear. While there was a suicide note found, there is no
evidence that the offender had complained previously of any
problems that would lead one to believe that he would want to
kill himself in this manner.
(e) DCS staff members found to be directly or indirectly
responsible for the deaths of offenders must be disciplined
or, if appropriate, prosecuted. Initiatives with regard to
the disciplinary action against officials identified in both
reports must be reported to the Chairperson of the Portfolio
Committee on Correctional Services thirty (30) days after
adoption of this report.
(f) The Committee recommends that the DCS looks further into the
actions of the Operational Head with regard to allegations of
poor communication with Unit Managers.
(g) The recommendations contained in the report of the incident
of the 23 August 2004, especially those identified as
precautionary measures must be addressed immediately. The
Committee requests that the DCS establishes target dates for
the implementation of each of these measures and that these
EPD 20 MAY 2005 PAGE:158 of 180
dates are forwarded to the Committee, thirty (30) days after
the adoption of this report, as well as a written progress
report on the status of implementation (and possible barriers
to implementation) to date. These include:
Feasibility study on the manufacturing of fire
Adherence to the required procedures regarding the
handling of complaints and requests.
Implementation of a disciplinary system for
Removal of prominent gang members as cleaners.
Measures to ensure that staff physically perform
their duties in the sections according to the day
(h) Additional recommendations highlighted in the report of 23
August 2004 should be implemented immediately and a written
progress report on these initiatives should be forwarded to
the Portfolio Committee thirty (30) days after the adoption
of this report. These include:
The status of a separate investigation into the fire
in cell 230 on 22 August 2004.
EPD 20 MAY 2005 PAGE:159 of 180
The status of the separate investigation into the
assault on an offender. In addition the Committee is
concerned about allegations that this offender raped
and stole from offenders and requests that the DCS
provides a written report on actions taken in this
regard to the Committee thirty (30) days after
adoption of this report.
The status of consideration of special remission of
sentence for two offenders and the award of a merit
certificate to the acting Head of Prison.
(i) The recommendations contained in the preliminary report of 29
October 2004 concerning proper supervision of the operation
of the prison are addressed as a matter of urgency, and that
a status report of implementation of these recommendations is
submitted to the Committee thirty (30) days after the
adoption of this report. These include measures to improve:
Uncontrolled movement of offenders.
Improper attendance to complaints and requests of
Improper or lack of security.
Mixing of different categories of offenders (maximum
sentenced with those sentenced to a few years).
Unmanned sections during night shifts.
EPD 20 MAY 2005 PAGE:160 of 180
Inadequate control of unit managers.
(j) Training for unit and other managers must be prioritised in
Pollsmoor Management Area and particularly in the Admission
(k) The DCS must prioritise addressing the problem of
overcrowding in the Admission Centre at Pollsmoor. The
Portfolio Committee on Correctional Services will call the
DCS in to account for measures taken in this regard.
(l) The DCS must put in place measures to ensure that offenders
are occupied during the day, in order to reduce gang
activities. While the Portfolio Committee is aware that
staff shortages and lack of facilities hamper the ability of
the DCS to offer recreational and training programmes to
offenders at Pollsmoor, offenders must be allowed to exercise
once a day in line with the requirements of the Correctional
Services Act, No. 111 of 1998. Verbal reports by offenders
during the visit by the Committee seem to imply that this is
(m) The DCS must ensure that all offenders at the Admission
Centre have reasonable access to social workers and the
Independent Prison Visitor.
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E. Further steps to be taken by the Portfolio Committee on
The Portfolio Committee on Correctional Services will take the
following steps to assist in ensuring that these incidents do
(a) Prison gangs, particularly in the Western Cape, are becoming
an increasingly serious problem. The Portfolio Committee on
Correctional Services will call the DCS in to account for
measures that they are taking to address gangsterism in
prisons and to identify:
The extent of the problem in prisons around the
Their plan of action to address this growing problem.
(b) The Committee will meet with NGOs, academics and other role-
players involved in research and activities around prison
gangs in order to gather information on possible solutions to
the problem of gangs in prisons.
(c) The Committee will continue to press that urgent attention is
given to an intersectoral solution to the problem of
overcrowding within prisons. The issue of responsibility for
EPD 20 MAY 2005 PAGE:162 of 180
awaiting trial detainees (ATDs) must be addressed as a matter
(d) The Committee will continue to support the DCS in its plan to
implement the 7-day establishment to ensure sufficient staff
members are on duty on the weekends. This will necessitate
an additional 9 000 personnel and the DCS plans to employ an
additional 3 200 personnel per annum over a 3 year period.
R401 million per annum is needed to fund these additional
It is the duty of the DCS to provide a safe environment for
staff and offenders. The Portfolio Committee on Correctional
Services strongly recommends that all steps are taken to ensure
that incidents of this nature do not recur within the Pollsmoor
Report to be considered.
4. Report of the Portfolio Committee on Correctional Services on a
visit to Pretoria following a breach at Pretoria Close Maximum
Security (CMAX) Centre, dated 22 February 2005:
EPD 20 MAY 2005 PAGE:163 of 180
The Portfolio Committee on Correctional Services having visited
the CMAX Centre on 17 November 2004, considered and adopted the
above mentioned report on 22 February 2005, reports as follows:
On 7 November 2004, during an unsuccessful escape attempt at
Pretoria C Max Centre, four people died including two of the
offenders who were part of the escape attempt and two senior
B. Purpose of the Visit
The Portfolio Committee on Correctional Services visited the C
Max facility on the 17 November 2004. The purpose of this
oversight visit was to:
(a) Obtain a detailed briefing from the management of the prison
on the incident of the 7 November 2004.
(b) Obtain a briefing on subsequent steps that have been taken to
prevent a re-occurrence of this incident as well as the
longer-term security framework that will be implemented.
(c) To meet with the staff of the prison to discuss their
concerns and problems as well as to highlight the problem of
corruption in the Department of Correctional Services (DCS).
EPD 20 MAY 2005 PAGE:164 of 180
The objectives of this report are to:
(a) Identify key issues of concern to the Portfolio Committee
arising from the incident of the 7 November 2004 and
highlighted on the visit to the facility on 17 November 2004.
(b) Recommend to the DCS management, further action that should
be taken prevent a recurrence of an incident of this nature.
(c) Identify further steps that will be taken by the Portfolio
Mr DV Bloem
Ms LS Chikunga
Mr NB Fihla
Mr MS Moatshe
Mr LJ Tolo
Mr CT Molefe
Mr S Mahote
Pretoria C Max holds 211 sentenced offenders and 43 unsentenced
offenders. C Max is currently running at 81% capacity. The
centre has 152 established posts of which 133 are filled.
EPD 20 MAY 2005 PAGE:165 of 180
The C Max Centre is run as a programme rather than merely as a
facility to house maximum-security offenders. The programme is
divided into 2 phases. Phase 1 consists of a 6-week programme
during which time new arrivals to the facility are given
extremely limited privileges. Offenders spend 23 hours a day
locked up in single cells. They are handcuffed when on exercise
and exercise is done in individual small cages. They receive
intense social and psychological assessment during this phase
and are evaluated after 6 weeks by a committee that makes a
recommendation to the Area Commissioner for approval. A decision
is then taken as to whether the offenders should commence to
Phase 2 or remain for a longer period in Phase 1. Phase 2 is
divided into 3 groups - A, B and C groups. Privileges for each
group are gradually increased and the offenders will progress
from one group to another. If they transgress at any stage,
they start the programme again from the beginning. Completion
of the programme without transgressions will take 2 years after
which offenders will be transferred back to the prison from
which they came from.
1. Incident of 7 November 2004
On Sunday 7 November 2004, 5 offenders attempted to escape by
holding correctional officials from the section hostage. They
were armed with a loaded firearm. The Head of Pretoria C Max,
Mr. S. Gomba and the Acting Pretoria Area Coordinator for
EPD 20 MAY 2005 PAGE:166 of 180
Corrections, Mr. AB. Ndinisa, were both on a working visit to
the section at the time. Upon being confronted by the
offenders, these two officials refused to obey instructions and
attempted to disarm them. The armed offenders shot both the
officials wounding them fatally.
When the 5 offenders realised that there was no possibility of
escape, 2 of the inmates disassociated themselves from the
incident, as they stated that the murder of correctional
officials had not been part of the plan. The remaining 3
inmates wanted to commit suicide but there were only 2 bullets
left in the weapon. Two of the inmates put their heads together
and the third inmate fired a shot hoping to kill both of them
but was successful in killing only one of them. The other
inmate survived with surface wounds. The gunner then shot
himself and died.
The SAPS is in the process of investigating the incident. The
initial stage of the SAPS investigation has shown that an
employee of DCS was responsible for providing a firearm to the
offenders and he has been arrested and charged. The SAPS have
also identified the owner of the firearm. The three remaining
inmates are cooperating with the police in the investigation.
EPD 20 MAY 2005 PAGE:167 of 180
The DCS is not embarking on an internal investigation of the
incident but instead will focus on wider issues related to the
incident in order to minimise a recurrence of an incident of
this nature. According to the Minister of Correctional
Services, a task team will be appointed to institute an
independent investigation of the incident. Their mandate will
include the incident at C Max as well as security breaches at
other centres such as the Pollsmoor Correctional Centre.
D. Key Issues of Concern
1. Security measures
The C Max Centre is meant to be the most secure facility in the
country to house dangerous offenders. Any security breach at
this facility is thus a serious concern, not only to the
Portfolio Committee, but to all the citizens of the country.
While at the time of the visit of the Portfolio Committee, the
investigation into how security was breached was still in
progress, it was already known that an employee had managed to
smuggle a firearm into the facility and to provide this firearm
to the offenders in order to assist in their escape.
The Committee members noted the following details on the visit:
EPD 20 MAY 2005 PAGE:168 of 180
(a) The parking area adjacent to the prison is not under the
jurisdiction of the DCS. This is the area in which the
alleged getaway car was parked and as no searching or
monitoring of cars in this area occurs it can easily result
in a security breach.
(b) In addition, the wall to this parking area is shared with the
prison which means that items may be thrown over the wall for
retrieval by corrupt officials.
(c) Staff are not scanned at the initial reception point and only
go through security checks at the entrance to each prison on
(d) Vehicles are searched manually, but this measure is not very
effective as objects can easily be bypassed.
(e) There is no razor wire on the wall which divides the parking
area from the prison complex.
(f) While the scanners at the time of the visit seemed to be
working it was noted by the management of the centre that
when scanners break down it takes a long time for the
Department of Public Works to fix or replace them.
(g) Surveillance cameras are outdated.
(h) A concern was raised that the kitchen for C Max is staffed by
medium security offenders and after normal working hours the
kitchen is left unattended by the correctional officials.
EPD 20 MAY 2005 PAGE:169 of 180
According to the DCS, a number of security changes were made in
C Max following a similar incident in June 2004. These
(a) Prohibition of handbags and parcels from passing beyond the
first entry point of Pretoria C Max.
(b) Increase of searching staff at entry point to C Max.
After the incident of 7 November 2004 a number of additional
measures were taken including:
(c) Replacement of personnel at the first entry point by
officials from the Emergency Support Team of the DCS. These
personnel were responsible for finding a cellphone that a
visitor had tried to smuggle into the facility only a few
days after the incident of the 7 November 2004.
(d) All contact visits have been halted.
The top management of the 6 regions of the DCS met soon after
the incident to identify short-term security measures for urgent
implementation around the country to improve security. In
addition, in recognition of weaknesses in the current security
system, the DCS has identified a new security system framework
for longer-term implementation. This framework consists of 5
pillars of security in the Minimum Security Standards. The
EPD 20 MAY 2005 PAGE:170 of 180
(a) Personnel security measures.
(b) Physical security measures.
(c) Technological security measures.
(d) Information security management.
(e) Procedural security measures.
Each of these pillars must be coordinated with the others to
ensure a comprehensive and integrated approach to the management
of security. It has been identified that the first pillar-
personnel security measures are vital to the success of any
security intervention by the DCS. The DCS is planning and
developing an internal ‘Integrity Verification System’ which
will be used to identify problematic individuals (ie those with
criminal records) within the DCS and also to prevent problematic
individuals from getting employment in the DCS. According to
the Minister of Correctional Services, the DCS is considering
instituting periodic security clearance checks of members who
work in high-risk sections at Correctional Centres.
The Minister of Correctional Services announced that he has
instructed an investigation into the costs of installing
electronic monitoring equipment in all maximum security centres
as well as other identified centres.
2. Corruption amongst staff
EPD 20 MAY 2005 PAGE:171 of 180
The Portfolio Committee recognises that not all staff who work
in the DCS and in the C Max facility are corrupt. However, it
is clear to the Committee that the incident at the C Max
facility was largely as a result of the actions of one or more
corrupt correctional officials working at the facility. While
physical security measures are of paramount importance in
ensuring the security of the employees, the public and the
offenders, these measures can always be bypassed by the actions
of corrupt officials.
According to the DCS, they identify top students to work in C
Max. The C MAX staff all undergo a special training course. No
information was given to the Committee as to the nature and
duration of this ‘special’ training. However, of major concern
to the Committee is the fact that there is no screening process
to vet staff before they start work at the C Max. In addition,
there is no ongoing monitoring process of correctional officials
working in high-risk institutions.
3. Staff concerns
In line with the focus of the Committee on staffing issues in
the DCS as well as the fact that there is often a link between
corruption and discontentment amongst staff, the Portfolio
EPD 20 MAY 2005 PAGE:172 of 180
Committee met with the C Max staff during the visit to discuss
some of their concerns and problems. These included:
(a) Budgetary constraints and the cutting of overtime
remuneration has left the C Max (and all other correctional
centres) vulnerable to security breaches over the weekends,
when there are a reduced number of staff at work.
(b) Curtailment of the freedom of union members to freely express
(c) There is a concern that the vetting and screening process for
correctional officials will not apply to the management
(d) Correctional officials who report intelligence information
feel that management responds inappropriately by
investigating the officials rather than interrogating the
information, which reduces the likelihood of officials
(e) Security measures are not approved due to budgetary
(f) Policy of rotation of staff (including C Max heads) means
that officials and management do not have the opportunity to
build trusting relationships with each other.
(g) The policy for recruitment of personnel into management
positions is unclear.
(h) Communication between management at regional and prison level
with correctional officials is poor.
EPD 20 MAY 2005 PAGE:173 of 180
(i) Management does not address complaints that are lodged by
(j) There is no longer a norm with regard to the ratio of
correctional officials to offenders.
One of the major concerns of the Portfolio Committee,
highlighted in this visit is the relationship between prison
gangs and disruptive incidents within prisons, which often
result in dangerous situations for both staff and offenders.
The five offenders involved in the incident belonged to the
Airforce gang that specialises in planning escapes. The DCS was
aware that these offenders were members of this gang and at
least one of the offenders was involved in a prior escape
According to the DCS, the Air force gang has become a majority
in C Max and it is thus impossible to separate Airforce gang
E. Recommendations to DCS Management
1. Immediate funding for the implementation of the five-pillar
EPD 20 MAY 2005 PAGE:174 of 180
Implementation of the five-pillar security plan is a priority
especially in high-risk centres such as the C Max facility. The
Portfolio Committee expects that funding will be made available
immediately to implement this plan at the facility. The DCS
should report to the Committee on progress in the implementation
of the security plan at C Max as well as other correctional
centres, as well as any possible barriers to the implementation
by the 1 April 2005.
The DCS should motivate for funding for physical security
measures, especially at high risk institutions in the budget for
2005-06 and the MTEF. The Portfolio Committee would support
this motivation during its budget process.
2. Immediate implementation of the screening of all DCS staff prior
to employment and periodically after employment
The Portfolio Committee recognises the integral role that staff
play in reducing the likelihood of security breaches. The
screening of DCS staff prior to employment and during employment
is very important. The Portfolio Committee strongly recommends
that the DCS implement the vetting procedure of new recruits
immediately and begins the process of vetting all existing DCS
staff. Security checks of existing staff should be done
periodically to ensure that reduce the likelihood of the
development of corrupt tendencies amongst staff. The DCS should
EPD 20 MAY 2005 PAGE:175 of 180
report on progress in the implementation and barriers to
implementation to the Portfolio Committee by 1 April 2005.
Vetting of DCS staff should encompass all staff within DCS
3. Special training and vetting of C Max staff
Staff that work at high-risk institutions such as C Max should
undergo special training to ensure effective functioning in this
environment. This training should be sufficiently intensive and
directed in order to capacitate them to work effectively in this
environment. In addition, the vetting of staff in high-risk
institutions such as C Max should be a priority in terms of
rollout of implementation of the vetting process.
The DCS should report to the Portfolio Committee on special
measures taken to ensure effective staffing at the C Max
facility by the 1 April 2005.
Prison gangs are a historical reality within our prison system.
The Portfolio Committee recommends that the DCS reassess their
approach to prison gangs. In discussions with the Committee,
DCS management has stated that it has a policy of non-
EPD 20 MAY 2005 PAGE:176 of 180
recognition of prison gangs in order to delegitimise them. The
fact is that prison gangs exist and are an integral facet of
prison life throughout the country.
The Portfolio Committee recommends that the DCS staff engage in
directed discussions with outside organisations and role-players
(as well as individuals within the prison system who have
managed to work innovatively with prison gangs) to develop a
new, dynamic, flexible and creative approach to deal with
prisons gangs in a changing South African context. The approach
should be one of ensuring that the prisons become safer places
for both staff and offenders, including gang and non-gang
5. Addressing staff concerns
It is clear to the Portfolio Committee that there is a link
between corruption and discontentment amongst staff. While the
problems faced by staff is no excuse for corruption there are
measures that can be taken by the DCS to ensure a more content
workforce and thus a more effective work environment. The
Portfolio Committee expects the DCS to address the concerns
raised by staff at C Max including:
EPD 20 MAY 2005 PAGE:177 of 180
(a) Implementing measures to improve communication between
management and staff at C Max and between regional management
and the prison with a view to:
(b) Ensuring that staff feel free to come forward with
information without fear of intimidation,
(c) That complaints by staff are recorded and addressed where
(d) That management decisions are properly accounted for.
(e) That policy decisions are properly communicated between
national, regional and prison level.
(f) Management at prison, regional and national level, must take
staff concerns around security seriously. The Portfolio
Committee recommends that security equipment needs identified
at the C Max are prioritised and a budget immediately made
available to fulfil these needs. In addition, it is
recommended that an attempt is made by DCS to limit the
impact of the budget cuts to overtime in high risk
institutions such as the C Max.
6. Disciplinary measures against staff implicated in incidents
While the Portfolio Committee respects the need of the DCS to
institute disciplinary procedures against officials suspected of
corruption within the framework of the Labour Relations Act and
the DCS disciplinary code, the Committee recommends that:
EPD 20 MAY 2005 PAGE:178 of 180
(a) Disciplinary proceedings are initiated promptly.
(b) That all measures are taken to reduce attempts to derail the
proceedings by officials who do not want to see the
(c) That officials accused of serious offenses are not merely
transferred to other prisons or work spheres.
(d) That if necessary the disciplinary code is modified to ensure
that unnecessary delays in process are restricted.
(e) That officials accused of serious crimes such as aiding and
abetting in a murder are not allowed to be suspended with
7. Establishment of an internal crime intelligence function
According to the DCS management at C Max the DCS wants to
develop its own internal crime intelligence function. The
Portfolio Committee would require a briefing by the DCS
outlining the objective, ambit and operation of this function.
The Portfolio Committee requests that the DCS provide it with
written reports of both the June 2004 incidents and the November
2004 incident on completion of the SAPS investigation and the
DCS investigation. These reports should highlight the nature
and cause of the security breaches, the action taken against
EPD 20 MAY 2005 PAGE:179 of 180
officials identified in the incident, recommendations to ensure
that the incidents do not recur and the status of implementation
of the recommendations.
F. Further steps to be taken by the Portfolio Committee
1. Lack of condemnation of the incident by the unions
The Portfolio Committee notes with concern the lack of
condemnation of the actions of the implicated correctional
official on the part of some of the unions. The Portfolio
Committee will call the unions in to discuss this (amongst other
issues) within the first 6 months of 2005.
2. Message to the public
The Members of the Portfolio Committee on Correctional Services
will alert the members of the public in their constituencies
about the dangers of aiding and abetting offenders in the
procurement of drugs, cellphones and weapons. In addition, when
embarking of prison oversight visits, the Members will talk to
members of the community who are visiting offenders at the
correctional centres to inform them of the negative role that
they are playing in reducing the likelihood of rehabilitation of
offenders if they procure illegal substances and objects on
behalf of offenders.
EPD 20 MAY 2005 PAGE:180 of 180
3. Report to correctional officials on concerns raised
The Portfolio Committee will discuss the concerns raised by
correctional officials of C Max with the management of the
facility and with regional or national management if necessary
and report back to the correctional officials on the results of
discussions in this regard.
The Members of the Portfolio Committee on Correctional Services
offer their condolences to the families of the deceased who lost
their lives in this incident. The actions of the two deceased
offenders is testimony to the fact that many correctional
officials are brave and committed individuals. Unfortunately,
there are also correctional officials who are corrupt and very
strong action must be taken against these officials.
The Portfolio Committee is concerned about security breaches
especially in high risk institutions and will closely monitor
the implementation of additional security measures by the DCS to
rectify this situation and avoid a recurrence of an incident of
Report to be considered.