The short answer
You could lay a complaint at the Judicial Inspectorate for Correctional Services (JICS).
The whole question
I am writing to set out the appalling frustrations that my partner, who has served twenty years of a life sentence and has been waiting for five years to hear from the Minister of Justice about parole. Besides the delay in dealing with his parole, my partner has suffered for two years from a bladder infection for which he has not been given adequate treatment or assistance with the catheters he needs in order to urinate. There is no response from the National Council of Correctional Services to the many complaints about the delay in dealing with his parole, and there is no attempt on their part to find out anything about him. I don’t know why he is not given a plot of land to cultivate vegetables, as Oscar Pistorius was given, but I suspect that there is one rule for the rich and famous and another for ordinary people.
The long answer
To begin with, the way your partner’s health issues have been handled:
The Constitution says in Section 27 (1) that everyone has the right to have access to health care services. The Bill of Rights also says that all detained people have the right to be treated in a way “consistent with human dignity”.
To facilitate these constitutional promises, the Judicial Inspectorate for Correctional Services (JICS) was set up in 1998, to inspect prisons so that the head of JICS could report on conditions and the treatment of inmates.
The JICS 2020-2021 annual report says the following about the state of prison health care:
“Inmates do not get regular access to nurses and doctors, clinics in prisons are cramped and there is limited privacy for consultations, correctional officials are not always available to escort inmates to healthcare facilities, medications are not always dispensed on time, some medications have expired, health check-ups and screenings upon admission are not always conducted and medical files are not always updated.”
JICS is the watchdog. But as the head of JICS Justice Edwin Cameron, said, although it was not toothless, the watchdog needed sharper teeth. JICS should be completely independent of the Department of Correctional Services (DCS) in order to do its work effectively; it should not have its budget decided by DCS, as is still the case currently. The Constitutional Court in Sonke Gender Justice v President in December 2020 gave parliament two years to amend the law, saying that DCS could not be that the very department over which JICS had to exercise oversight, controlled the JICS budget and was in a position to starve JICS. As Justice Cameron wrote in a GroundUp article in 2022, "We do not have the resources or personnel to provide dignified conditions and an ear to more than 150,000 inmates and over 28,000 officials."
He explained that “JICS has no binding powers – no operational control, no policy-making power or executive hold over the department. It has no power to recommend parole or to fix creaking parole processes; no power to grant transfers, to discipline or transfer miscreant officials, to make binding recommendations or to enforce them – in short, no power to follow through on serious adverse findings.”
Although JICS had reported the escape of Thabo Bester to DCS months before it was published, they did nothing. And without GroundUp’s investigation into the escape and publishing, they might well have preferred to keep it quiet.
In May 2023, Justice Cameron said that they had been working on a new bill to be put before Parliament next year that will expand the power of JICS on what must be reported to it and what DCS had to do when JICS made recommendations and findings. And most importantly, Parliament would decide on the JICS budget, not DCS.
So, on the bright side, things are not standing still, but it is an enormous task to reform the prison system.
To move on to parole:
As you explained, you were represented by the NPO, Families for Lifers, which applied for admission to the Constitutional Court as an intervening party in the Janusz Walus v Minister of Justice case, wanting to have the whole parole system reviewed. Though this was denied as it fell outside of the Court’s ambit in the matter, the Court found that Walus must be paroled in terms of Section 33 (1) of the Constitution which says that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. This is provided for through the Promotion of Administrative Justice Act of 2000 (PAJA). This is an important judgment for all the offenders serving life sentences.
JICS has received a great many complaints about the chronic delay in parole cases and is in talks with the Minister of Justice currently to "try and find a solution" to the problem of the enormous backlog of parole cases. According to a March 2022 article for GroundUp by Masego Mafata, only 36 of 4,494 “lifers” eligible for parole consideration were granted parole in the last reported year.
Like your partner, many people have done more years than they were required to do before being considered for parole, because of these delays.
As you know, the profiles of those seeking parole are sent to the Correctional Services and Parole Board by the Case Management Committee for them to consider, three months before reaching their minimum detention period. Their recommendations then go to the Minister of Justice for his decision.
And as you pointed out, because your partner was sentenced to life imprisonment in September 2004, which predated the October 2004 amendments increasing the minimum prison time to be served from 20 years to 25 years before being eligible for parole, the 2011 van Wyk v Correctional Services judgment applies to him, meaning that he is entitled to have the date on which he could be considered for parole advanced by the earning of credits. The Constitutional Court agreed, in the Phaahla case in 2019, that the policies of the old law under which an offender had been sentenced still applied, rather than those under the amended Act. It also found that parole should be calculated from the date of commission of the offense rather than the date of sentencing. This meant that more offenders serving life sentences for an offense committed before 1 October 2004, but only sentenced after 1 October 2004, were eligible for earlier parole.
You quite correctly say that your partner’s parole should have been considered five years ago. However, DCS says there is no time laid down for how long it should take to consider parole and that the Minister considers each case individually. This is clearly a recipe for the disaster that is unfolding now, with the Minister’s desk overflowing with parole requests to be considered.
JICS says that although there is no obligation for the Minister to grant parole, it is the offender’s right to have the request for parole considered. JICS says it may be possible to seek a court order compelling the Minister to consider the parole request timeously.
You might want to consult with Legal Aid, which is a means-tested organisation that must assist people who can’t afford a lawyer.
These are their contact details:
Tel: 0800 110 110 (Monday to Friday 7AM - 7PM)
(Please Call Me): 079 835 7179
With regard to growing vegetables:
I don’t think there is any right for offenders to be granted plots of land to grow vegetables, but the Minister of Justice, Ronald Lamola, did say recently that they were cutting back on food expenses in prisons as there were now programs for offenders to grow the food consumed in the prison, though he did not give the names of the prisons where this was taking place.
In terms of making an official complaint, the Correctional Services Amendment Bill of 2007 says that an offender must first refer a complaint to the head of the prison who refers it to the area manager or to the National Commissioner. If the offender is not satisfied with how the complaint was dealt with, the offender can then ask JICS to investigate.
The physical address of JICS is:
Salu Building 29th Floor,
316 Thabo Sehume Street,
Tel: (012) 321 0303
Wishing you the best,
Answered on May 19, 2023, 9:44 a.m.
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