PRESENTATION ON

CORRECTIONAL MATTERS

AMENDMENT

BILL-2010

Clause by clause analysis

PROPOSED AMENDMENTS

The Bill seeks to improve the administration of 3 key areas of corrections, namely:

• Strengthen the parole system in general;• Provide for a new medical parole system; and• Provide further for the management of remand

detainees.

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CLAUSE 1

Definitions

• Definition of inmate amended

New definitions inserted:

• Remand detainee

• Remand detention facility

• Remand detention official

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CLAUSE 2Amends section 3(2) of the Act

• Section 3 deals with the establishment functions and control of the Department

• Subsection (2) is amended to make provision for the management of remand detainees

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CLAUSE 3

Amends section 5(1) and (2) of the Act

• Section 5 deals with the establishment of Correctional Centres

• Subsections (1) and (2) are amended to provide for the establishment of remand detention facilities

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CLAUSES 4 AND 5

• Clause 4: Amends section 10 (clothing and bedding provision) of the Act by the deletion of subsection (2) since it is provided for in clause 9 (new section 48).

• Clause 5: Amends section 17 (access to legal advice) of the Act: change in terminology

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CLAUSE 6

Amends section 38 of the Act:

• Section 38 deals with the assessment of sentenced offenders upon admission

• It is proposed that an inmate should also be assessed to determine his or her restorative justice requirements

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CLAUSE 7Amends section 39 of the Act:

• Section 39 deals with the commencement, computation and termination of sentences

• Amends subsection (2) paragraph (a) by seeking to regulate the serving of any further sentence imposed on a habitual criminal in order to give effect to the order in Mans v Minister of Correctional Services [2008] JOL 21381 (W).

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CLAUSE 7 (Cont.)

• Amends section 39(3) by the deletion of reference to extradition and the insertion of absconders.

• The principle, whereby sentences are postponed in the case of interruption thereof, is not related to extradition but rather to the date of escape or absconding. Reference to absconding was previously omitted.

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CLAUSE 8Amends section 42 of the Act• Section 42 deals with the powers, duties and functioning of

the Case Management Committee• In the main clause 8 amends the content of the report

compiled by the CMC for submission to the CSPRB by:– Deleting subparagraph (v) – there is no difference in the

way in which habitual criminals and other offenders are being assessed or considered for placement on parole. In all cases the factors for consideration are rehabilitation and risk and therefore this provision is no longer used.

– Including additional criteria such as assessment results and sentence plan progress.

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CLAUSE 8 (Cont.)

– requiring each sentenced offender to obtain an identity document or foreign national to be recorded as such for security reasons. Persons without identity documents need to be identified in order to be brought to the attention of the Department of Home Affairs to determine whether their presence in the RSA is desirable or not in order to take decisions regarding, amongst others, deportation of such inmate upon expiry of sentence.

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CLAUSE 9• Replaces Chapter V of the Act in order to

provide for the more comprehensive management, safe custody and well-being of remand detainees (RD’s).

New sections:• Section 46: Spells out the principles of the regime

applicable to RD’s. (Only subsection (3) differs from existing wording of section 46)

• Section 47: Deals with the provision of food and drink to RD’s by visitors (wording the same as in existing section 48).

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CLAUSE 9 (Cont.)• Section 48: Makes the wearing of a prescribed

uniform (different from that of sentenced offenders) compulsory. This proposal is intended to bolster security and provide decent and humane clothing for destitute remand detainees.

• Section 49: Provides for access to information and intends to ensure proper record keeping.

• Sections 49A, 49B, 49C and 49D: These sections deal respectively with pregnant women, disabled/aged and mentally ill RD’s with specific reference to their physical and mental health and conditions of incarceration.

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CLAUSE 9 (Cont.)• Section 49E: Provides a procedure (modeled on section 63A

of the CPA) for the referral of terminally ill or severely incapacitated RD’s to court. (The conditions set for qualification for such referral is broadly in line, with such changes as required by the context, with the new provision for medical parole as set out in section 79).

• Section 49F: Release of RD’s to SAPS for purpose of further investigation into charges other than those for which he or she is detained. This provision will ensure the administrative monitoring of such releases in future.

• Section 49G: Ensuring that matters involving RD’s detained for a period of 2 years or longer are brought to the attention of all role players for purposes of decision making (further detention or release under conditions appropriate to the case).

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CLAUSES 10 AND 11• Clause 10 amends section 54 of the Act, which deals with

day parole.– The Minister is included here since it was an omission

not to have done so in amending the Act in 2008, by determining that it is the Minister who decides on the placement on parole of lifers.

• Clause 11 amends section 70 of the Act, which deals with non-compliance with conditions set for community corrections.– Amendment is proposed to cater for cases where

offenders re-locate after being placed in the system of community corrections, in order to avoid unnecessary delays and costs.

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CLAUSE 12• Amends section 73 of the Act. Section 73 of the

Act provides the framework for parole calculations.

• Sections 48 and 49 of the 2008 Amendment Act intended to amend section 73 in order to incorporate an incarceration framework.

• These sections are now repealed (clause 19) and section 73 therefore needs to be amended to incorporate the terminology introduced by the 2008 Act and also to provide for the deletion of obsolete sentences e.g. Imprisonment for corrective training and prevention of crime.

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COMPARATIVE TABLE OF VARIOUS MINIMUM PERIODS TO BE SERVED BEFORE CONSIDERING PLACEMENT

Minimum periods Sentence Act 8 of 1959 Act 111 of 1998 Proposed

Determinate sentence more than 24 months

⅓ of sentence (½ minus credits)

½ of sentence ½ of sentence

Determinate sentences not exceeding 24 months

⅓ of sentence (½ minus credits)

½ of sentence ¼ of sentence

Corrective training 2 years 12 months Scrap – sentence option no longer exists

Prevention of crime 4 years 2 years and 6 months Scrap – sentence option no longer exists

Habitual criminal 7 years 7 years 7 years 276(1)(i) of the CPA No stipulation – only per

policy - ⅙ of sentence ⅙ of sentence ⅙ of sentence

Life incarceration 20 years 25 years 25 years Sentenced under section 51/ 52 of the Criminal Law Amendment Act

⅓ of sentence (½ minus credits)

80% of sentence ½ of sentence (scrap relevant section – serving determinate sentence of more than 24 months)

276A(3)(a) – referral to Court for conversion of sentence

¼ of sentence – not more than 5 years before earliest consideration

No stipulation – only per policy - ¼ of sentence – not more than 5 years before expiry of sentence

¼ of sentence – not more than 5 years before expiry of sentence

287(4)(a) – Fine with alternative of Incarceration of not more than 5 years

No stipulation – only per policy - As soon as possible

No stipulation – only per policy - As soon as possible

As soon as possible

287(4)(b) – Fine with alternative of Incarceration of more than 5 years

No stipulation – only per policy - ¼ of sentence – not more than 5 years before expiry of sentence

No stipulation – only per policy - ¼ of sentence – not more than 5 years before expiry of sentence

¼ of sentence – not more than 5 years before expiry of sentence

Any sentence- offender 65 years or older

Only lifers: if served more than 15 years

Only lifers: if served more than 15 years

Any sentence: offender older than 65 and must have served at least 15 years

Dangerous criminals – Section 286 of the CPA

Referral back to court after period served as determined by the court

Referral back to court after period served as determined by the court

Referral back to court after period served as determined by the court – but not more than 25 years

CLAUSE 13• Amends section 75 of the Act, which deals

with the powers, functions and duties of the CSPB.

– A further function i.e. that CSPB may decide on medical parole is added. It was an omission.

– It clarifies the position that a decision of the CSPB is suspended pending a review of a decision by the CSPB.

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CLAUSE 14: NEW MEDICAL PAROLE SYSTEM

• Section 79 of the Act currently limits the granting of medical parole to sentenced offenders who are in the final phase of a terminal illness.

• Medical practitioners are reluctant to recommend placement on medical parole within this limited definition. Reluctance can also be attributed to media and societal pressures associated with such recommendations, since 60% of inmates do not pass away after placement on medical parole.

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MEDICAL PAROLE CONT.

• As a result many seriously ill or similarly incapacitated inmates currently do not qualify for medical parole.

• The Department also records a high number of natural deaths each year.

• This scenario puts serious pressure on already limited financial and human resources required to meet the health care needs of inmates.

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MEDICAL PAROLE CONT.

• The Bill introduces a new medical parole system, which aims to balance the medical condition of the inmate against the risk posed to society should such inmate be placed on medical parole.

• Three factors must be present to qualify for consideration for placement on medical parole:

1) Inmate should suffer from a terminal illness or be rendered physically incapacitated as a result of injury, disease or illness so as to severely limit daily activity or inmate self-care; and

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MEDICAL PAROLE CONT.2) the risk of re-offending must be low; and

3) there must be appropriate arrangements for the inmate’s supervision, care and treatment upon release.

• Application: By medical practitioner or sentenced offender

• Medical report identifying the condition• Medical Advisory Board: To provide

independent medical report to ensure oversight over the system

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MEDICAL PAROLE CONT.• Not to be placed on parole if condition is self

induced

• Periodical medical examinations may take place

• Medical parole is not to be cancelled simply because of a change in an offender’s medical condition. But, the usual provisions on the cancellation of parole are equally applicable here, such as the violation of the conditions of community corrections.

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CLAUSES 15 AND 16• Clause 15: Amends section 90 of the Act,

which deals with the powers, functions and duties of the Inspecting Judge– Amended to provide for oversight functions of

the Inspecting Judge at remand detention facilities

• Clause 16: Inserts a new section 128A to address identity swap amongst RD’s– Creates an offence

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CLAUSES 17 AND 18• Clause 17: Amends section 134 of the Act

to introduce a range of issues relating to RD’s and medical advisory boards about which the Minister may make regulations.

• Clause 18: Provides for the amendment of the table of contents to incorporate the new sections.

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CLAUSES 19 AND 20

• Clauses 19 and 20 repeal all provisions referring to the development of an incarceration framework.

• Incarceration framework not workable for the following reasons: a) The development of a third parole system in SA is highly

undesirable and unworkable; b) Questions raised as to the legal standing of the process set out

for the adoption of the proposed incarceration framework; andc) No version of an incarceration framework could practically

achieve the desired outcomes stipulated.

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CLAUSE 21• Sets out the short title and commencement

date

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