Act, 1998, so as to amend a deï¬nition and insert new deï¬nitions; to provide for a new medical parole system; to clarify certain provisions relating to parole; to provide for the management and detention of remand detainees; and to provide for matters connected therewith.
2001 and section 1 of Act 25 of 2008 1.
Mental Health Care Act, 2002 (Act No.
'remand detention facility' means a place established under this Act as a place for the reception, detention or conï¬nement of a person liable to 30 detention in custody, and all land, branches, outstations, camps, buildings, premises or places to which any such persons have been sent for the purpose of detention, protection, treatment or otherwise, and all quarters used by correctional officials in connection with any such remand detention facility, and for the purpose of sections 115 and 117 includes every place used as a police cell or lock-up; 'remand detention official' means an employee of the Department appointed under section 3(4) at a remand detention facility or transferred to a remand detention facility;''.
Amendment of section 3 of Act 111 of 1998, as amended by section 2 of Act 32 of 2001 2.
manage remand detainees.''.
Amendment of section of 5 of Act 111 of 1998, as amended by section 4 of Act 32 of 2001 and section 4 of Act 25 of 2008 3.
''(2) (a) Any correctional centre or remand detention facility established under subsection (1) may serve one or more districts as circumstances may require, and for the purposes of any law relating to magistrates' courts any correctional centre or remand detention facility established to serve more than one district is deemed to be the correctional centre or remand detention facility of each district served by that correctional centre or remand detention facility.
If there is no correctional centre or remand detention facility in a district an inmate may be detained in a police cell but not for a period longer than a month unless a longer period is authorised by the National Commissioner.''.
''(4) [Persons awaiting trial or sentence] Remand detainees or unsentenced offenders must be provided with the opportunities and facilities to prepare their defence.''.
Amendment of section 38 of Act 111 of 1998, as amended by section 30 of Act 25 of 2008 6.
''(j) restorative justice requirements.''.
any determinate sentence of incarceration to be served by any person runs concurrently with a sentence of imprisonment to be served by such person in consequence of a person being declared a habitual criminal: Provided that where the determinate sentence is longer than 15 years or where such sentence is imposed after a person is declared a habitual criminal, the balance of such determinate sentence must be served after the term of 15 years has been completed.'
''(3) The date of expiry of any sentence of incarceration being served by a sentenced offender who escapes from lawful custody [extradited in terms of the Extradition Act, 1962 (Act No. 67 of 1962), and returns to the Republic], who absconds from the system of community corrections or who is unlawfully discharged is postponed by the period by which such sentence was interrupted.''.
Amendment of section 42 of Act 111 of 1998, as amended by section 22 of Act 32 of 2001 and substituted by section 34 of Act 25 of 2008 8.
such other matters as the Correctional Supervision and Parole Board may request; and''.
Substitution of Chapter V of Act 111 of 1998 9.
Remand detainees may be subjected only to those restrictions necessary for the maintenance of security and good order in the remand detention facility and must, where practicable, be allowed all the amenities to which they could have access outside the remand detention facility.
The amenities available to remand detainees may be restricted for disciplinary purposes, and may be prescribed by regulation.
The provisions of section 6 to 24 apply to a remand detainee with such changes as may be required by the context.
Subject to restrictions which may be prescribed by regulation, remand detainees may be allowed to have food and drink from their visitors in the remand detention facility.
Every remand detainee must wear a prescribed uniform which distinguishes him or her from a sentenced offender for the maintenance of security and good order in the remand detention facility.
Any person requesting information relating to the incarceration of a remand detainee, must use the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000), to make such request.
Information and records, as prescribed by regulation, must be kept at the relevant detention facility for the periods as provided for in the Archives Act, 1996 (Act No. 43 of 1996).
49A. (1) Every remand detainee who on admission claims to be pregnant, must immediately be referred to a registered medical practitioner for a full medical examination in order to conï¬rm such pregnancy.
The National Commissioner must, within the Department's available resources, ensure that a unit is available for the accommodation of pregnant remand detainees.
The provisions of section 12 apply to pregnant remand detainees with such changes as may be required by the context.
Every pregnant remand detainee must be provided with an adequate diet to promote good health, as prescribed by regulation.
The provisions of section 20 apply to a pregnant remand detainee with such changes as may be required by the context.
49B. (1) If the National Commissioner considers it necessary, having regard to remand detainees' disability, the National Commissioner may detain disabled remand detainees separately in single or communal cells, depending on the availability of accommodation speciï¬cally designed for persons with disabilities.
The Department may provide, within its available resources, additional health care services, based on the principles of primary health care, in order to allow the remand detainee to lead a healthy life.
The Department must provide, within its available resources, additional psychological services, if recommended by a medical practitioner.
49C. (1) The National Commissioner may detain remand detainees over the age of 65 years in single or communal cells, depending on the availability of accommodation.
A registered medical practitioner may order a variation in the prescribed diet for an aged remand detainee and the intervals at which the food is served, when such a variation is required for medical reasons and is within the available resources of the Department.
49D. (1) The National Commissioner may detain a person suspected to be mentally ill in a single cell or hospital section for purposes of observation by a medical practitioner.
The Department must provide, within its available resources, adequate health care services for the prescribed care and treatment of the mentally ill remand detainee.
The Department may, as far as practicable, provide social and psychological services in order to support mentally ill remand detainees and promote their mental health.
there are appropriate arrangements for the remand detainee's supervision, care and treatment within the community to which the inmate is to be released, that Head may apply to the court concerned, in the manner set out in this section, for the release of such detainee.
contain a written certiï¬cate by the Director of Public Prosecutions concerned, or a prosecutor authorised thereto by him or her in writing, to the effect that the prosecuting authority does not oppose the application.
The remand detainee and his or her legal representative, if any, must be notiï¬ed of an application referred to in subsection (1).
The National Commissioner may, in consultation with the National Director of Public Prosecutions, issue directives regarding the procedure to be followed by a Head of a remand detention facility or correctional centre, as the case may be, and a Director of Public Prosecutions whenever it is necessary to bring an application contemplated in subsection (1).
Police Service for the purpose of further investigation into charges other than those charges for which he or she is detained, without authorisation by the National Commissioner.
for a period not exceeding seven days.
The National Commissioner of the South African Police Service having custody of the remand detainee may, on good cause shown, apply to the National Commissioner for an extension of the period referred to in subsection (2).
49G. (1) The period of incarceration of a remand detainee must not exceed two years from the initial date of admission into the remand detention facility without such matter having been brought to the attention of the court concerned in the manner set out in this section.
The Head of the remand detention facility must report to the relevant Director of Public Prosecutions at six-monthly intervals the cases of remand detainees in his or her facility that are being detained for a successive six-month period.
Any remand detainee whose detention will exceed the period stipulated in subsection (1) must be referred to the relevant court by the Head of the remand detention facility or correctional centre, as the case may be, to determine the further detention of such person or release under conditions appropriate to the case.
If, subsequent to the referral of the remand detainee to court as contemplated in subsection (3), the ï¬nalisation of his or her case is further delayed, the Head of the remand facility or correctional centre, as the case may be, must refer the matter back to the court on a yearly basis to determine the remand detainee's further detention or release under conditions appropriate to the case.
The National Commissioner may, in consultation with the National Director of Public Prosecutions, issue directives regarding the procedure to be followed by a Head of a remand detention facility or correctional centre, as the case may be, and a Director of Public Prosecutions whenever it is necessary to bring an application contemplated in subsection (3) or (4).''.
Amendment of section 54 of Act 111 of 1998 10.
''(2) The Minister, National Commissioner, Correctional Supervision and Parole Board, court or other body must decide on the duration of placement on day parole and must inform the Head of the Correctional Centre who must inform the sentenced offender concerned of that determination.''.
Amendment of section 70 of Act 111 of 1998, as amended by section 26 of Act 32 of 2001 and section 46 of Act 25 of 2008 11.
[or, if a Correctional Supervision and Parole Board under whose jurisdiction such person falls imposed the conditions of community corrections, before such Board];''.
Amendment of section 73 of Act 111 of 1998, as amended by section 27 of Act 32 of 2001 12.
[a prisoner] an offender sentenced to life [imprisonment] incarceration remains in [prison] a correctional centre for the rest of his or her life.
Any sick [prisoner] sentenced offender whose sentence has expired but whose release is certiï¬ed by the correctional medical [officer] practitioner to be likely to result in his or her death or impairment of his or her health or to be a source of infection to others, may be temporarily detained until his or her release is authorised by the correctional medical [officer] practitioner.
A sentenced [prisoner] offender must be released from [prison] a correctional centre and from any form of community corrections imposed in lieu of part of a sentence of [imprisonment] incarceration when the term of [imprisonment] incarceration imposed has expired.
In accordance with the provisions of this Chapter a [prisoner] sentenced offender may be placed under correctional supervision [or on], day parole [or on], parole or medical parole before the expiration of his or her term of [imprisonment] incarceration.
in the case of [a prisoner] an offender sentenced to life [imprisonment on day parole or on parole] incarceration, on a date to be determined by the [court] Minister.
Such placement is subject to the [prisoner] provisions of Chapter VI and such offender accepting the conditions for placement.
Subject to the provisions of paragraph (b), [a prisoner] a sentenced offender serving a determinate sentence or cumulative sentences of more than 24 months may not be placed on day parole or parole until such [prisoner] sentenced offender has served either the stipulated non-parole period, or if no non-parole period was stipulated, half of the sentence, but day parole or parole must be considered whenever a [prisoner] sentenced offender has served 25 years of a sentence or cumulative sentences.
Subject to the provisions of paragraph (b), an offender serving a determinate sentence or cumulative sentences of not more than 24 months may not be placed on parole or day parole until such offender has served either the stipulated non-parole period, or if no non-parole period was stipulated, a quarter of the sentence.
[(v) imprisonment contemplated in section 51 or 52 of the Criminal Law Amendment Act, 1997 (Act No.
any term of incarceration, excluding persons declared dangerous criminals in terms of section 286A of the Criminal Procedure Act, may be placed on day parole or parole on reaching the age of 65 years provided that he or she has served at least 15 years of such sentence.
A person who has been declared [an] a habitual criminal may be detained in a [prison] correctional centre for a period of 15 years and may not be placed on day parole or parole until after a period of at least seven years.
A person who has been declared a dangerous criminal in terms of section 286A of the Criminal Procedure Act, must be referred back to court in accordance with section 75(1)(b) of this Act, within seven days after the period as determined by the court, or 25 years, whichever is the shortest, has been served.
(a) A person sentenced to [imprisonment] incarceration under section 276(1)(i) of the Criminal Procedure Act, must serve at least one sixth of his or her sentence before being considered for placement under correctional supervision, unless the court has directed otherwise[, but if more than one sentence has been imposed under section 276(1)(i) of the said Act, the person may not be placed under correctional supervision for a period exceeding ï¬ve years].
[If a person has been sentenced to imprisonment under section 276(1)(i) of the Criminal Procedure Act, and to imprisonment for a period not exceeding ï¬ve years as an alternative to a ï¬ne the person must serve at least one sixth of the effective sentences before being considered for placement under correctional supervision, unless the court has directed otherwise] A person sentenced to incarceration for a period not exceeding ï¬ve years as an alternative to a ï¬ne under section 287(4)(a) of the Criminal Procedure Act, may be considered for placement under correctional supervision by the National Commissioner or the Correctional Supervision and Parole Board as soon as possible after admission to a correctional centre subject to the conï¬rmation of a suitable support system, unless the court has directed otherwise.
a period not exceeding ï¬ve years as an alternative to a ï¬ne; the person shall serve at least a quarter of the effective sentence imposed or the non-parole period, if any, whichever is the longer before being considered for placement under correctional supervision, unless the court has directed otherwise A person sentenced to incarceration for a period exceeding ï¬ve years as an alternative to a ï¬ne under section 287(4)(b) of the Criminal Procedure Act, may be recommended to a court for placement under correctional supervision, except if the court has directed otherwise, in circumstances where such an offender has completed at least one quarter of the sentence and the remainder of the sentence until sentence expiry does not exceed ï¬ve years.
A person sentenced to [imprisonment] incarceration for a deï¬nite period in terms of section 276(1)(b) of the [said] Criminal Procedure Act may not be placed under correctional supervision unless such sentence has been converted into correctional supervision in accordance with section 276A(3) of the said Act.
A person sentenced to incarceration for a deï¬nite period under section 276(1)(b) of the Criminal Procedure Act, may be referred to a court in accordance with section 276A(3)(a) of that Act, if the offender has completed at least a quarter of the effective sentence and the remainder of the sentence until sentence expiry does not exceed ï¬ve years.''.
Amendment of section 75 of Act 111 of 1998, as amended by section 29 of Act 32 of 2001 and section 51 of Act 25 of 2008 13.
in respect of any sentenced offender serving a sentence of life incarceration, make recommendations to the Minister on granting of day parole [or], parole or medical parole, and, subject to the provisions of section 52, the conditions of community corrections to be imposed on such an offender.'
''(4) Where a complainant or relative is entitled in terms of the Criminal Procedure Act[,] to make representations or wishes to attend a meeting of a Board, [the Commissioner must inform the Board in question accordingly and] that Board must inform the complainant or relative in writing when and to whom he or she may make representations and when and where a meeting will take place.'
''(5) If, after the Board has approved a sentenced offender being placed under correctional supervision or [be] being granted day parole [or], parole or medical parole, and, prior to the implementation of the decision of the Board, the Case Management Committee reports to the Board that the circumstances of such an offender have changed to such an extent that it is not advisable to implement the decision, the implementation shall be deferred until the Board authorises it.'
''(6) When the Board or the Minister cancels correctional supervision [or], day parole [or], parole or medical parole, the matter may be reconsidered by the Board or the Minister within such period as [it] the Board or the Minister deems ï¬t, but [it] the Board or the Minister must do so within two years.
cancel correctional supervision or day parole or parole or medical parole and alter the conditions for community corrections applicable to such person.
the record of the proceedings before the Board must be submitted to the Correctional Supervision and Parole Review Board.'
''(9) The Minister may cancel correctional supervision, day parole or parole as referred to in subsection (6) only if the decision to grant correctional supervision, day parole or parole was taken by the Minister.''.
Substitution of section 79 of Act 111 of 1998, as amended by section 55 of Act 25 of 2008 14.
there are appropriate arrangements for the inmate's supervision, care and treatment within the community to which the inmate is to be released.
a sentenced offender.
An application lodged by a sentenced offender in accordance with paragraph (a)(ii) shall not be considered by the National Commissioner, the Correctional Supervision and Parole Board or the Minister, as the case may be, if such application is not supported by a written medical report recommending placement on medical parole.
reasons as to why the placement on medical parole should be considered.
The Minister may establish a medical advisory board for each province, to provide an independent medical report at the request of a Correctional Supervision and Parole Board, in addition to the medical report referred to in subsection (2)(c).
Nothing in this section prohibits a medical practitioner or medical advisory board from obtaining a written medical report from a specialist medical practitioner.
A sentenced offender may not be placed on medical parole in circumstances where the medical conditions, which form the basis of the medical practitioner's diagnosis or prognosis under subsection (2), were self-induced.
the agreement by such offender to subject himself or herself to such monitoring conditions as set by the Correctional Supervision and Parole Board in terms of section 52, with an understanding that such conditions may be amended and or supplemented depending on the improved medical condition of such offender.
An offender placed on medical parole may be requested to undergo periodical medical examinations by a medical practitioner in the employ of the Department.
any of the factors listed in section 42(2)(d).
Nothing in this section prohibits a complainant or relative from making representations in accordance with section 75(4).
A decision to cancel medical parole must be dealt with in terms of section 75(2) and (3): Provided that no placement on medical parole may be cancelled merely on account of the improved medical condition of an offender.
The Minister must make regulations regarding the processes and procedures to follow in the consideration and administration of medical parole.''.
''(1) The Inspecting Judge inspects or arranges for the inspection of correctional centres and remand detention facilities in order to report on the treatment of inmates in correctional centres and remand detention facilities and on conditions and any corrupt or dishonest practices in correctional centres and remand detention facilities.''.
Insertion of section 128A in Act 111 of 1998 16.
128A. A remand detainee who intimidates or conspires with another remand detainee to exchange identities or to defeat the ends of justice, is guilty of an offence and liable on conviction to a ï¬ne or to incarceration for a period not exceeding 10 years or to such incarceration without the option of a ï¬ne or to both a ï¬ne and such incarceration.''.
Amendment of section 134 of Act 111 of 1998 17.
the composition of the medical parole advisory boards;''.
Amendment of Table of Contents of Act 111 of 1998 18.
Safekeeping of information and records 49A. Pregnant women 49B. Disabled remand detainees 49C. Aged remand detainees 49D. Mentally ill remand detainees 49E. Referral of terminally ill or severely incapacitated remand detainee to court 49F. Release under supervision of South African Police Service 49G. Maximum incarceration period.''.
Repeal of sections 48 and 49 of Act 25 of 2008 19. Sections 48 and 49 of the Correctional Services Amendment Act, 2008, are hereby repealed.
Amendment of section 87 of Act 25 of 2008 20. Section 87 of the Correctional Services Amendment Act, 2008, is hereby amended by the deletion of subsection (3).
This Act is called the Correctional Matters Amendment Act, 2010, and comes into operation on a date determined by the President by proclamation in the Gazette.
1.1 The Correctional Matters Amendment Bill, 2010 (the Bill), seeks to improve the administration of three key areas of corrections, namely medical parole, the parole system in general and the management of remand detention.
1.2 The current provisions of the Correctional Services Act, 1998 (the principal Act), limit the granting of medical parole to sentenced offenders who are in the ï¬nal phase of a terminal illness. Many seriously ill or similarly incapacitated inmates are therefore not eligible for consideration of placement on medical parole as they cannot be medically certiï¬ed as being in the ï¬nal stages of a terminal illness. Medical practitioners are reluctant to recommend placement on medical parole within the limited deï¬nition currently applicable. The reluctance on the part of medical practitioners can also be attributed to media and societal pressures associated with such recommendations in a situation where 60% of inmates do not pass away after placement on medical parole. At the same time the reluctance of medical practitioners to recommend the placement of inmates on medical parole, in order to die a digniï¬ed and consolatory death outside, results in a very high number of natural deaths within the centres of the Department of Correctional Services (the Department). This scenario further puts serious pressure on already limited ï¬nancial and human resources required for meeting the health care needs of inmates. In order to address the shortcomings outlined above, 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. In this model there are three factors which must be present in order to qualify for consideration for placement on medical parole. Not only should the inmate 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, but the risk of re-offending must also be low and there must be appropriate arrangements for the inmate's supervision, care and treatment upon release.
1.3 In 2008, the development of an incarceration framework was proposed in order to substitute the existing framework, which was spelt out in the principal Act, for the determination of minimum periods which offenders have to serve before qualifying for consideration for placement on parole. The incarceration framework had to be developed by the National Council for Correctional Services (NCCS), acting in consultation with the National Commissioner.
In the process of developing the incarceration framework a number of questions with regard to the desirability of developing such a framework were raised.
no version of an incarceration framework could practically achieve the desired outcomes as stipulated in section 73A(2) of the Correctional Services Amendment Act, 2008 (Act No. 25 of 2008).
It has therefore been decided not to proceed with the development of an incarceration framework, but instead to strengthen the existing legislative framework which regulates the determination of minimum periods to be served by sentenced offenders before consideration of placement on parole. The Bill repeals all provisions referring to the development of an incarceration framework, whilst at the same time addressing shortcomings with the functioning of the current parole system.
1.4 The Cabinet Lekgotla in January 2006 directed a Cluster Project aimed at reï¬ning the remand detention system in South Africa on the basis that remand detention is a distinct function from corrections. One of the tasks of the project was to review the existing policy and regulatory framework governing remand detention.
ï¬xing the time that a person should remain in remand detention. An enabling legislative instrument was also required for the release of gravely ill remand detainees from remand detention, subject to conditions.
Consultation has taken place with the NCCS with regard to the repeal of the incarceration framework and the development of a new medical parole system.
The Department will budget for the medical parole advisory body as well as the new Remand Detention Branch.
The establishment of a new branch on Management of Remand Detainees and the new Medical Parole Advisory Body will have ï¬nancial implications. Providing remand detainees with clothing and making remand detention facilities accessible to remand detainees with disabilities will also have ï¬nancial implications. The establishment of a remand detention budget programme and appropriate allocation to this budget programme will need to be addressed through, on the one hand, disaggregating funding from the other budget programmes and, on the other, ensuring that appropriate allocations are made in other respects.
The Department consulted on the Bill with government stakeholders in the Justice, Crime Prevention and Security Cluster, the National Council for Correctional Services and internal implementers. Stakeholders in civil society and the general public were also invited to comment on the content of the regulatory changes.
7.1 The State Law Advisers and the Department of Correctional Services are of the opinion that this Bill should be dealt with in terms of the procedure established by section 75 of the Constitution of the Republic of South Africa, 1996, since it contains no provision to which the procedure set out in section 74 or 76 of the Constitution applies.
7.2 The State Law Advisers are of the opinion that it is not necessary to refer this Bill to the National House of Traditional Leaders in terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.