Correctional Matters Amendment Act

Link to law: http://www.gov.za/documents/correctional-matters-amendment-act
Published: 2011-05-25

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Correctional Matters Amendment Act 5 of 2011
Please note that most Acts are published in English and another South African official language. Currently we only have capacity to publish the English versions.
This means that this document will only contain even numbered pages as the other language is printed on uneven numbered pages.
Government Gazette
REPUBLIC OF SOUTH AFRICA
Vol. 551 CapeTown 25 May 2011 No.34315
THE PRESIDENCY
No.453 25 May 201 1
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:-
No. 5 of 2011: Correctional Matters Amendment Act, 2011.
R.
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ActNo.Sof2011 CORRECTIONAL MATTERS AMENDMENT ACT, 2011
GENERAL EXPLANATORY NOTE:
Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
(English text signed by the President) (Assented to 24 May 2011)
ACT To repeal provisions establishing an incarceration framework introduced by the Correctional Services Amendment Act, 2008; to amend the Correctional Services Act, 1998, so as to amend a definition and insert new definitions; 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.
B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:- Amendment of section 1 of Act 111 of 1998, as amended by section I of Act 32 of 2001 and section l of Act 25 of 2008
I. Section I of the Correctional Services Act, 1998 (hereinafter referred to as the 5 principal Act), is hereby amended-
( a) by the substitution for the definition of "inmate" of the following definition: " ~inmate' means any person, whether convicted or not, who is detained in custody in any correctional centre or remand detention facility or who is being transferred in custody or is en route from one correctional centre 1 0 or remand detention facility to another correctional centre or remand detention facility;";
(b) by the insertion after the definition of"'non-parole period" of the following definition:
" 'other body, means either 15 (a) the National Director of Public Prosecutions or his or her delegate
acting in terms of sections 41 or 53(3} of the Child Justice Act, 2008, (Act No. 75 of 2008); or
(b) the Correctional Supervision and Parole Review Board acting under section 77(1) of the Act. 20
as the case may be;'"; (c) by the insertion after the definition of '"registered nurse" of the following
definitions: "'remand detainee'- (a) means a person detained in a remand detention facility awaiting the 25
flnalisation of his or her trial, whether by acquittal or sentence, if such person has not commenced serving a sentence or is not already serving a prior sentence; and
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GOVERNMENT GAZETTE, 25 MAY 2011
CORRECTIONAL MATTERS AMENDMENT ACT, 2011
(b) includes a person contemplated in section 9 of the Extradition Act, 1962, (Act No. 67 of 1962), detained for the purposes of extra- dition;"
'remand detention facility' means a place established under this Act as a place for the reception, detention or confinement of a person liable to 5 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 I 0 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;"; and
(d) by the insertion after the definition of "solitary confinement" of the 15 following definition: " 'specialist medical practitioner' means a person registered in respect of any profession under the Health Professions Act, 1974, (Act No. 56 of 1974), to whom the definition 'speciality' applies under that Act;".
Amendment of section 3 of Act Ill of 1998, as amended by section 2 of Act 32 of 20 2001
2. Section 3 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection:
"(2) The Department must- (a) fulfil the purpose of the correctional system in terms of this Act; 25 (b) as far as practicable, be self-sufficient and operate according to business
principles; Iandi (c) perform all work necessary for its effective management; and (d) manage remand detainees.".
Amendment of section 5 of Act Ill of 1998, as amended by section 4 of Act 32 of 30 2001 and section 4 of Act 25 of 2008
3. Section 5 of the principal Act is hereby amended- (a) by the substitution in subsection (I) for the words preceding paragraph (a) of
the following words: ''The Minister may by notice in the Ga:::ette) establish and review the 35 establishment of correctional centres and remand detention facilities for-": and
(b) by the substitution for subsection (2) of the following subsection: "(2) (u) Any correctional centre or remand detention facility
established under subsection (1) may serve one or more districts as 40 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. 45
(b) 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 seven days Ia month unless a longer period is authorised by the National Commissioner].".
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Act No. 5 or20 11 CORRECTIONAL MATTERS AMENDMENT ACT, 2011
Amendment of section 10 of Act 111 of 1998
4. Section 10 of the principal Act is hereby amended by the deletion of subsection (2).
Amendment of section 17 of Act 111 of 1998, as amended by section 3 of Act 25 of 2008
5. Section 17 of the principal Act is hereby amended by the substitution for subsection 5 (4) of the following subsection:
"(4) (Persons awaiting trial or sentence] Remand detainees 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 10
6. Section 38 of the principal Act is hereby amended- ( a) by the substitution in subsection (I) for paragraph (h) of the following
paragraph: "(h) allocation to a specific correctional centre; [and]";
(b) by the substitution in subsection (1) for paragraph (i} of the following 15 paragraph:
"(i) needs regarding reintegration into the community~"; and (c) by the addition in subsection (1) after paragraph (i} of the following
paragraphs: "(j) restorative justice requirements; and 20 (k) vulnerability to sexual violence and exploitation.".
Amendment of section 39 of Act 111 of 1998, as amended by section 31 of Act 25 of 2008
7. Section 39 of the principal Act is hereby amended- ( a) by the substitution in subsection (2) for paragraph (a) of the following 25
paragraph: "(a} Subject to the provisions of paragraph (b), a person who receives
more than one sentence of incarceration or receives additional sentences while serving a term of incarceration, must serve each such sentence, the one after the expiration, setting aside or remission of the other, in such 30 order as the National Commissioner may detennine, unless the court specifically directs otherwise~ or unless the court directs such sentences shall run concurrently but- (i) any determinate sentence of incarceration to be served by any
person runs concurrently with a life sentence or with a sentence of 35 incarceration to be served by such person in consequince of being declared I an habitual criminal orJ a dangerous criminal;
(ii) one or more life sentences and one or more sentences to be served in consequence of a person being declared !an habitual criminal or] a dangerous criminal also run concurrently; (and] 40
(iii) no placement or release of a dangerous criminal may take place other than in terms of section 286B of the Criminal Procedure Act; and
(iv) any detetminate sentence of incarceration to be served by any person runs concurrently with a sentence of imprisonment to be 45 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 50 been completed."; and
(b) by the substitution for subsection (3) of the following subscclion: "(3) The date of expiry of any sentence of incarceration being served
by a sentenced offender who cscapt..:s from lawful custody or is extradited in terms of the Extradition Act, 1962 (Act No. 67 of 1962), and returns to 55 the Republic or who absconds from the system of community corrections
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Act No.5 of 2011 CORRECTIONAL MATTERS AMENDMENT ACT, 2011
or who is unlawfully discharged is postponed by the period by which such sentence was interrupted.".
Amendment of section 42 of Act Ill of 1998, as amended by section 22 of Act 32 of 2001 and substituted by section 34 of Act 25 of 2008
8. Section 42 of the principal Act is hereby amended by the substitution in subsection 5 (2) for paragraph (d) of the following paragraph:
"(d) submit a report, together with the relevant documents, to the Correctional Supervision and Parole Board rcgarding-
(i) the offence or offences for which the sentenced offender is serving a term of incarceration together with the judgment on the merits and 10 any remarks made by the court in question at the time of the imposition of sentence if made available to the Department;
(ii) the previous criminal record of such offender; (iii) the conduct, disciplinary record, adaptation, training, aptitude,
industry, physical and mental state of such offender; 15 (iv) the likelihood of a relapse into crime, the risk posed to the
community and the manner in which this risk can be reduced; (v) [a sentenced offender who has been declared a habitual criminal
which indicates that- (aa) there is a reasonable probability that such an offender will 20
in future abstain from crime and lead a useful and industrious life; or
(bb) such an offender is no longer capable of engaging in crime; or
(cc) for any other reason, it is desirable to place such an 25 offender on parole! the assessment results and the progress with regard to the correctional sentence plan contemplated in section 38;
(vi) the possible [re-placement] placement of [such[ an offender under correctional supervision in terms of a sentence provided for in 30 section 276(1 )(i) or 287(4)(a) of the Criminal Procedure Act, or in terms of the conversion of such an offender's sentence into correctional supervision under section 276A(3 )(e)(ii)!, 286B(4)(h)(ii)] or 287(4)(h) of the said Act, and the conditions for such placement: 35
(vii) the possible placement of such sentenced offender on day parole [or on]2 parole or medical parole, and the conditions for such placement; [and]
(viii) !such other matters as the Correctional Supervision and Parole Board may request] a certified copy of the offender's identity 40 document and, in the case of a foreign national, a report from the Department of Home Affairs on the residential status of such offender;
(ix) the possible placement under correctional supervision or release of an offender who has been declared a dangerous criminal, in terms of 45 section 2868(4)(b) of the Criminal Procedure Act; and
(x) such other matters as the Correctional Supervision and Parole Board may request; and".
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Act No. 5 of 2011 CORRECTIONAL MATTERS AMENDMENT ACT. 2011
Substitution of Chapter V of Act I II of 1998
9. The following Chapter is hereby substituted for Chapter V of the principal Act:
"CHAPTER V
MANAGEMENT, SAFE CUSTODY AND WELL-BEING OF REMAND DETAINEES 5
Management, safe custody and well-being of remand detainees
46. (I) 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. 10
(2) The amenities available to remand detainees may be restricted for disciplinary purposes, and may be prescribed by regulation.
Food and drink
47. Subject to restnctwns which may be prescribed by regulation, remand detainees may be allowed to have food and drink sent or brought to 15 them in a remand detention facility.
Clothing
48. ( 1) 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. 20
(2) No remand detainee is to appear in any court proceedings dressed in a prescribed uniform referred to in subsection ( 1 ).
(3) If a remand detainee docs not have adequate or proper clothing to appear in court, he or she must be provided at State expense with appropriate clothing to enable him or her to appear in court. 25
Safekeeping of information and records
49. Information and records, as prescribed by regulation, must be kept at the relevant detention facility for the periods as provided for in the National Archives and Record Service of South Africa Act, 1996 (Act No, 43 of 1996). 30
Pregnant women
49A. (1) Every remand detainee who on admission claims to be pregnant, must immediately e rei erred to a registered medical practitioner for a full medical examination in order to confirm such pregnancy.
(2) The National Commissioner must, within the Department's available 35 resources, ensure that a unit is available for the accommodation of pregnant remand detainees.
(3) Every pregnant remand detainee must be provided with an adequate diet to promote good health, as prescribed by regulation.
Disabled remand detainees 40
49B. (I) 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 specifically designed for persons with disabilities. 45
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Act No.5 of2011 CORRECTIONAL MATTERS AMENDMENT ACT, 2011
(2) The Department must 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.
(3) The Department must provide, within its available resources, additional psychological services, if recommended by a medical practitio- 5 ner.
Aged remand detainees
49C. (t) The National Commissioner may detain remand detainees over the age of 65 years in single or communal cells, depending on the availability of accommodation. I 0
(2) 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.
Mentally ill remand detainees 15
49D. (I) The National Commissioner may detain a person suspected to be mentally ill, in terms of section 77(1) of the Criminal Procedure Act or a person showing signs of mental health care problems, in a single cell or correctional health facility for purposes of observation by a medical practitioner. 20
(2) The Department must provide, within its available resources, adequate health care services for the prescribed care and treatment of the mentally ill remand detainee.
(3) The Department must. within its available resources, provide social and psychological services in order to support mentally ill remand 25 detainees and promote their mental health.
Referral of terminally ill or severely incapacitated remand detainee to court
49E. (I) If the Head of a remand detention facility or correctional centre, as the case may be, is of the opinion that 30 (a) a remand detainee is, based on the written advice of the medical
practitioner treating that person, suffering from a terminal disease or condition or if such detainee is rendered physically incapacitated as a result of injury, disease or iJJness so as to severely limit daily activity or inmate self-care; 35
(b) the remand detention facility or correctional centre in question cannot provide adequate care for such detainee; and
(c) there are appropriate arrangements for the remand detainee's supervi- sion, care and treatment within the community to which the inmate is to be released. 40
that Head may apply to the court concerned, in the manner set out in this section, for the release of such detainee.
(2) {a) An application contemplated in subsection (I) must be lodged in writing with the clerk of the court, and must- (i) contain a sworn statement or affinnation by the Head of the remand 45
detention facility or correctional centre concerned to the effect that he or she is satisfied that the conditions stipulated in subsection ( 1) have been met; and
(ii) contain a written certificate by the Director of Public Prosecutions concerned, or a prosecutor authorised thereto by him or her in writing 50 whether the prosecuting authority opposes the application or not.
(b) The remand detainee and his or her legal representative, if any, must be notified of an application referred to in subsection (I).
(3) The National Commissioner may, in consultation with the National Director of Public Prosecutions, issue directives regarding the procedure to 55 be followed by a Head of a remand detention facility or correctional ~:entre, as the case may be, and a Director of Public Prosecutions whenever it is necessary to bring an application ~:ontcmplated in subsection ( 1 ).
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Act No.5 of2011 CORRECTIONAL MATTERS AMENDMENT ACT, 2011
Release under supervision of South African Police Service
49F. (l) No remand detainee may be surrendered to the South African Police Service for the purpose of further investigation, without authorisa- tion by the National Commissioner.
(2) The National Commissioner may authorise the surrender of a remand 5 detainee to the South African Police Service as contemplated in subsection ( l) for a period not exceeding seven days.
Maximum incarceration period
49G. ( l) The period of incarceration of a remand detainee must not exceed two years from the initial date of admission into the remand l 0 detention facility, without such matter having been brought to the attention of the court concerned in the manner set out in this section: Provided that no remand detainee shall be brought before a court in tenns of this section if such remand detainee had appeared before a court three months immedi- ately prior to the expiry of such two year period and the court during that 15 appearance considered the continued detention of such detainee.
(2) 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. 20
(3) Any remand detainee whose detention will exceed the period stipulated in subsection (l) 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. 25
(4) If, subsequent to the referral of the remand detainee to court as contemplated in subsection (3), the finalisation 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 detennine the remand detainee's further detention or release under 30 conditions appropriate to the case.
(5) 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 35 necessary to bring an application contemplated in subsection (3) or (4). ".
Amendment of section 54 of Act 111 of 1998
10. Section 54 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection:
"'(2) The Minister, National Commissioner, Correctional Supervision and Parole 40 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 45
11. Section 70 of the principal Act is hereby amended by the substitution for subparagraph (ii) of subsection (I)(a) of the following subparagraph:
"(ii) instruct the person to appear bct(>re the Correctional Supervision and Parole Board that is situated closest to the place of residence of such person or the Board which has jurisdiction within the area where the non-compliance took 50 place, or other body which imposed the conditions of community corrections [or, if a Correctional Supervision and Parole Board under whose jurisdiction such person falls imposed the conditions of community corrections, before such BoardJ;".
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