JALI COMMISSION OF INQUIRY
Report to be presented to the Parliamentary Portfolio Committee
On Tuesday : 20th August 2002
Following numerous allegations of corruption. maladministration, nepotism, intimidation and other improper conduct in some of the big Management Areas of the Department of Correctional Services and the murder of a senior manager in Kwa Zulu Natal, the Minister of Correctional Services approached the President to appoint an independent judicial commission of inquiry to thoroughly investigate the allegations and to make comprehensive recommendations in that regard.
2. ESTABLISHMENT OF COMMISSION
- The President then appointed Judge Thabani Jali, a judge of the Durban High Court as Chairman of the Commission. The Commission was duly constituted by the order of the President in terms of Proclamation No. 135/2001 dated 27th September 2002 which proclamation sets out the regulations governing the Commission as well as the Commissionís Terms of Reference.
- During the months of October and November 2001 all the necessary preliminary work and infrastructure for the setting up of the commission was undertaken. Investigators, evidence leaders, commissioners and support staff were recruited.
- On 3rd December 2001 the full Commission moved into their premises at 10th Floor, Embassy Building, 199 Smith Street, Durban, which premises now serve as the head office of the commission.
3. TERMS OF REFERENCE
The Commissionís terms of reference as set out in the Proclamation are as follows :
- To inquire into the report on :
- alleged incidents of corruption and maladministration relating to :
- the procurement of goods and services for the Department of Correctional Services;
- the recruitment and appointment, promotion and dismissal of employees;
- the treatment of prisoners;
- dishonest practices and illicit relationships between members of Department and prisoners leading to unlawful activities.
- alleged incidents of non-adherence to department policy and deviation from national norms and standards;
- alleged incidents of violence or intimidation against employees of the Department which affect the proper functioning of the Department.
- To make recommendations as to steps that can be taken in order to prevent the future occurrence of such incidents.
- To make recommendations as to steps that can be taken against employees who in terms of the findings of the Commission are implicated in impropriety against the employer.
- Although these terms of reference apply generally to the Department of Correctional Services, the Commission is required to prioritise its inquiry by focusing on the prisons in the order listed hereunder Ė
(a) Pietermaritzburg Management Area;
(b) Durban Westville Management Area;
- Ncome Management Area;
- Johannesburg Management Area;
- Pollsmoor Management Area;
- Pretoria management Area;
- St. Albans Management Area;
- Leeukop Management Area.
- To inquire into and report on any other matter which in the Commissionís opinion is relevant to the terms of reference of the Commission.
- These terms of reference may be added to, varied or amended from time to time.
- The Commission shall be subject to and conduct in terms of the provisions of the Commission Act 1947, (Act No. 8 of 1947), as amended.
3.8 The Commission shall commence with its duties forthwith.
The Commissionís Terms of Reference were subsequently amended by Proclamation Number 23558 dated 27 June 2002 when the Grootvlei Prison was included as one of the prisons to be investigated.
5. COMMENTS ON TERMS OF REFERENCE
- It should be stressed that although the Terms of Reference require that the Commission prioritise the nine (9) prisons mentioned, the terms of reference of the Commission apply generally to the entire Department of Correctional Services.
- The terms also require the Commission to investigate the extent to which the recommendations of previous reports have been implemented.
- From this it can be seen that the terms of reference of the Commission of Inquiry extend and have a far wider impact than what may at first sight be perceived.
6. GATHERING & HEARING OF EVIDENCE
- In gathering evidence the Commissionís investigators relied on :-
- The numerous leads generated from newspaper advertisements placed in several newspapers circulating in the area of the prison under investigation;
- A 24 hour tollfree 0800 telephone number set up at the Commissionís offices which enabled prisoners, members of the Department and the general public to call if they had any information relating to corruption or improper conduct;
- Numerous statements taken by the Commissionís investigators again from prisoners, members of the department and the public;
- In hearing evidence the Commission :-
- conducted all its hearings in open court in accordance with Section 4 of the Commissions Act;
- allowed legal representation to any party who desired such representation;
- permitted all oral evidence to be fully tested under cross examination;
- accepted documentary evidence by way of affidavit as evidence.
6.3 At the hearings Judge Jali was assisted by two Commissioners being Mrs Ester Steyn a Senior Law Lecturer at the University of Cape Town and Advocate Themba Sishi an Advocate from the Durban Bar.
7. SUPPORT OF MEMBERS
- The Commission has enjoyed excellent co-operation and support from the Department of Correctional Services from the Minister, the Commissioner right down to the lowest rank. Whatever the Commission required was speedily attended to.
- A large percentage of information on corruption and maladministration was received not from inmates as was initially expected by the Commission but from numerous dedicated members who often at great risk to their personal safety came forward to volunteer vital information. They all seemed anxious to rid the Department of the stigma of corruption once and for all and to restore honour to their ranks.
8. PRISONS INVESTIGATED THUS FAR.
8.1 The following prisons have already been investigated by the Commission :-
- Westville Prison in Durban
- Pietermaritzburg New Prison
- Grootvlei Prison in Bloemfontein
8.2. The Commission is presently hearing evidence at the Port Elizabeth High Court relating to allegations of improper conduct at St Albans Prison situated south of Port Elizabeth.
8.3. A summary of the types of problems encountered at the various prisons already investigated follows hereunder.
9. DURBAN WESTVILLE MANAGEMENT AREA
9.1 The first area of command that was investigated was the Durban Westville Management Area. To our disappointment, from the evidence that was led it soon become clear to the Commission that there was widespread confirmation of the following irregularities at the Durban Westville Prison.
- Prisoners leaving the premises illegally
This was being done with the full knowledge and assistance of warders. One inmate enjoyed endless conjugal visits to his spouse, another stayed at various city hotels while still a prisoner and also left the prison with a warder to retrieve an engine to be installed in the same warderís vehicle at the prison.
There appeared to be widespread interference by members in positions of authority in the selection process to ensure that relatives are appointed. In one particular case a senior manager was found guilty of using his influence to improperly obtain employment with the Department for his spouse;
Drug trafficking by warders in collaboration with prisoners was rife and recommendations were made and carried out that several warders be suspended and that criminal prosecutions be instituted against those implicated;
The shortlisting process was constantly being interfered with to ensure that members sympathetic to certain camps were selected for appointment and promotion. More difficult to prove however was the frequent allegation that recruits had paid individuals in the department to secure their employment;
This was found to be rampant with a large percentage of members being involved in the defrauding of the medical aid company Medcor. Evidence also indicated members being involved in organised crime acting as agents to recruit other members to participate in the defrauding of Medcor.
Evidence was also led of members of the Department extorting money from service providers and in this regard a senior manager was implicated.
The negative financial impact that these criminal activities have on the Departmentís coffers and the economy of the country as a whole can never be understated. There is shocking evidence of widespread corruption amongst certain service providers. In one case in Kwa Zulu Natal one medical doctor claimed an amount of R 30 000 000,00 (Thirty Million Rand) in one year from Medcor. Another doctor in Johannesburg was found to have claimed R 10 000 000.00(Ten Million Rand ).
As there are several doctors and pharmacies involved in these fraudulent activities it is clear that Medcor, the Department itself and ultimately the South African tax payer continues to lose millions of rands per year and urgent action is needed to address the problem.
The extortion of money from prisoners or former prisoners by warders was also found to be prevalent. Such extortion could be for the purposes of obtaining remissions of sentence, the conversion of sentences to periods of correctional supervision, or for the simple purpose of allowing an inmate privileges which he or she would not normally be entitled to. Warders were also extorting money from inmates or their families to ensure the safety of the inmate.
- Fraudulent Educational Qualifications
Several members were found to hold fraudulent matric certificates. It appeared that the fraudulent matric certificates were being generated by corrupt members employed in the Department of Education. This practice impacts on the Departmentís service delivery as under qualified personnel are appointed to the Department.
- Abuse of Parole Procedure
It became apparent that the Parole Board was being used merely to rubber stamp sinister decisions made elsewhere with the Board itself appearing not to apply its mind to the merits of the applications before it. Far reaching restructuring recommendations can be expected in relation to the make up and functioning of Parole Boards in the Commissionís final report
- Disciplinary Enquiries and Appeal Procedures
These were clearly shown to be at best hopelessly inadequate or staffed by incompetent people but at worst as being clearly manipulated, abused or stage managed to serve and protect certain individuals with improper agendas;
- Sentence Remissions & Conversion Procedures
Sentence remissions procedures were found to be open to abuse with reports of good conduct by prisoners being at times mere fabrications or having been done by some other inmate other than the inmate applying for remission.
9.2 After hearing evidence regarding allegations relating to Durban Westville it became abundantly clear to the Commission that :-
- The area of procurement of goods and services by the Department would have to be investigated by forensic auditors as the commission simply did not have the expertise and resources to conduct such a specialised investigation;
- Swift and immediate action needed to be taken against those members found guilty of improper conduct Ė the Commission and the Department could simply not wait for the final report of the Commission to be published before taking action;
- PROCUREMENT & APPOINTMENT OF FORENSIC AUDITORS
- One of the most important terms of reference of the Commission is to inquire into and report on alleged incidents of corruption relating to the procurement of goods and services for the Department.
- This represents a massive task as the Department on an annual basis enters into literally thousands of contracts with suppliers at national and provincial management area level, a task that could clearly not be undertaken by the Commission given its limited resources.
- To undertake the procurement investigation the Commission engaged the services of the Chartered Accounting firm Manase and Associates who have completed their investigations at the Departmentís Head Office, the provincial office of Kwazulu/Natal as well as at the Westville Management Area.
- The investigation into the procurement of goods and services at Westville focused on the following :-
There was clear evidence that one company in particular that had been awarded contracts to supply perishables to the prison had misled the Tender Board by falsifying information regarding its ownership to ensure that the company falls within the equity ratio as required by the tender rules.
The very same company referred to above appears to enjoy an unhealthy poisition of preference in the supply of perishables to the prison.
Certain staff members at the Logistics Department of the prison appear to be acting in concert with the company. Payment of invoices have been authorised without proof of delivery and clearly laid down policies, procedures and contract conditions were not adhered to.
In one particular incident the company supplied fresh cream to the prison despite the fact that another company had already been contracted by the prison to supply the fresh cream. This deviation from procedure in effect resulted in a loss to the Department of approximately R 18 803.76.
Evidence was found that prison staff in the Logistics department were manipulating quotations received to favour selected funeral parlours. Payments were being authorised without proper breakdowns being obtained and in some cases double payments to the obviously preferred parlour were discovered.
Certain staff were again found to be acting improperly in the authorising and payment of orders to certain pharmaceutical suppliers.
10.5 In their concluding remarks the auditors found that the outdated system presently used by the Department allows for the possibility of gross negligence and misconduct within the logistics department of Westville Prison. Controls are weak and the linkages between documentation and transactions are virtually non existent Ė all of which enhance the opportunity for fraudulent behaviour with very little prospect of detection. Urgent upgrading of the entire system is to recommended.
10.6 At the conclusion of further investigations presently underway, all the evidence contained in the report from auditors Manase & Associates and any further evidence that may come to light will be led before the Jali Commission which is likely to recommend that civil and criminal proceedings be instituted against any parties found to be guilty of improper conduct.
11. INTERIM REPORTS
- As stated, due to the widespread publicity received regarding serious allegations against individuals still employed by the Department, the Commission decided to depart from the normal commission procedure of publishing a comprehensive report at the end of the commission and decided rather to publish interim reports of its findings as it completes its investigations at the various prisons.
- These interim reports are intended to protect the integrity of the Departmentís Disciplinary Policy by allowing action to be taken against guilty individuals immediately rather than waiting for the final report of the commission to be published. It was felt that the confidence of innocent members of the Department itself and members of the public in the management of the Department would be regained when guilty parties were at least seen to being made to account for their actions.
- The Commissionís first set of Interim Reports regarding Durban Westville Prison Management Area and dealing mainly with allegations of :-
- Drug trafficking
- Disciplinary enquiries, and
- Medical aid fraud
and other issues which required the urgent attention or intervention of the Department of Correctional Services have been submitted to the President on the 30th April 2002 and all indications are that the recommendations are presently being acted upon.
12. PIETERMARITZBURG NEW PRISON
- During April 2002 the Commission moved into Pietermaritzburg and commenced its investigations and the hearing of evidence regarding allegations relating to the New Prison in Pietermaritzburg.
- It soon became apparent that the Commission faced a completely different set of dynamics and problems at the Pietermaritzburg Prison. Although the areas of misconduct encountered at Westville were also found to be present at Pietermaritzburg they seemed to occur to a far lesser degree.
- Political intrigue, trade unionism, intimidation, violence and even allegations of assassination of opponents dominated the evidence being presented. A general picture of fear and lawlessness emerged with many warders considering themselves above the law and conducting themselves accordingly.
- Problems peculiar to Pietermaritzburg worth mentioning are :-
A complete lack of unity amongst the members was apparent with members belonging to clearly defined A and B teams. Certain managers ruled the prison by intimidation and fear conducting the affairs of the prison as if the prison was their own fiefdom. As one senior manager commented in his evidence that the conduct of some of these individuals had turned " a model prison into a ghetto"
These members have also become the "gate keepers" to improved opportunity as they control all the key positions at the prison. Slowly they have succeeded in building their own power block by appointing members sympathetic to their cause to key positions and thus in effect controlling the recruitment, promotion and disciplinary processes.
There was clear evidence that this orchestrated campaign by Popcru members to replace white management members with selected Popcru members was being driven by senior managers employed at Pietermaritzburg Prison. The campaign itself was however found to be not limited to Pirtermaritzburg Prison.
The campaignís objectives were achieved by calculated action intended to render the prison ungovernable. Sit ins were organised and unwanted personnel were systematically targeted and thereafter either by intimidation or violence hounded out of office. In some cases the unwanted individuals were simply removed by force from their offices and never again allowed to enter the prison premises.
It is clear that the provisions of Departments Disciplinary Code will need to be amended to ensure that the proper distinction between management and the unions is maintained. In Pietermaritzburg this distinction has become extremely blurred or non existent. Union members appointed to management posts were still actively involved in union affairs. In some cases senior managers were found to be acting as shop stewards at disciplinary hearings Ė a completely unacceptable situation.
- Mismanagement of State Resources
A prison hospital built at a cost of approximately Four to Five Million Rand and thereafter equipped at a cost of 1.5 million rand was found to be standing empty and unulitilised since 2001. No adequate explanation was forthcoming from management.
During this time at substantial cost to the Department, prisoners in need of medical care were being sent to provincial or private hospitals. In the case of one prisoner who during this time spent a period of eleven months at a provincial hospital the cost billed to the Department amounted to R 168 908.00.
The closed hospital also placed a strain on the prisons manpower as several members were constantly compelled to leave their posts to escort the patient prisoners to these outside hospitals.
As a direct result of the Commissions intervention the doors of the hospital were opened to patient prisoners for the first time on 22nd May 2002 thus obviating the future need to send to patients prisoners at great expense to the Department, to provincial and private hospitals
12.5 With the discovery of the video cassette made by the four Grootvlei prisoners, the Commission was obliged at short notice to relocate to Bloemfontein to hear evidence relating to the improper conduct of warders as reflected on the videotape.
12.6 There will however be a need for the Commission to return briefly to Pietermaritzburg to allow certain members of the department who were in custody at the time of the Commissions initial hearings in Pietermaritzburg an opportunity to cross examine witnesses who have already testified. Accordingly the Commissionís report relating to this aspect of the evidence in Pietermaritzburg is still pending. Interim reports on all other matters however have been finalised and will be filed in due course.
- GROOTVLEI PRISON
13.1 During May 2002, the Commission was contacted by the four Grootvlei prisoners and alerted to the existence of the now famous incriminating videotape.
- During the same month of May 2002, after taking possession of the videotape, a meeting was held between Judge Jali, the Honourable Minister Ben Skosana and Commissioner Mr Mti in Cape Town, at which meeting the parties viewed the Grootvlei video.
- A decision was then made to approach the State President for an amended proclamation to include Grootvlei as one of the prisons to be investigated by the Commission. The amending Proclamation No 23558 incorporating Grootvlei was promulgated on the 27 June 2002.
- The shocking video evidence was not disproved by any of those warders implicated and served only to confirm what everyone could see that there was widespread evidence of the following at Grootvlei Prison :-
- Drug trafficking by warders;
- Sale of prison food and other state goods;
- Serious drug and alcohol abuse within the prison;
- The sale of a firearm by a warder with the full knowledge that the firearm was being purchased for the purposes of escaping from the prison;
- Sale of young prisoners for sex with elder prisoners was commonplace;
- A sodomy ring involving juvenile prisoners existing amongst warders
- Nepotistic appointments were prevalent
- A complete disregard of the Departmentís regulations which barred members from taking up other remunerative appointments without the Departments permission
- The distinction between management and the unions was again found to be tenuous with senior managers also found to be acting as shop stewards at disciplinary hearings.
- A Popcru driven campaign this time under the code name " Operation Thula " was also found to be in existence. The campaign involved :-
- Ignoring any instructions from senior management;
- The proliferation of contraband into the prison;
- Ignoring escapes;
- Members taking leave simultaneously;
- Turning the prison into a "G Hostel" as found in Welkom.
- Again due to the extensive public interest generated by the Grootvlei video, the Commission adopted an innovative approach and at the end of hearing evidence relating to the video issued a memorandum of its findings relating to any misconduct by any warder as shown on the video. The memorandum was to enable the Department of Correctional Services to immediately institute disciplinary action against the guilty parties whilst awaiting the final report on Grootvlei Prison.
- A more comprehensive report of the Commissionís findings on Grootvlei prison should be completed by the end of September 2002.
14. FUTURE PRISONS
- As stated earlier the Commission is presently hearing evidence at the Port Elizabeth High Court relating to allegations of corruption and misconduct at St Albans Prison which is situated to the south of Port Elizabeth.
- After winding up its hearings and investigations at St ALbans, the Commission will move to Pollsmoor Prison in Cape Town early in October and is likely to spend the last months of the year hearing evidence in Cape Town.
- In the new year the Commission will shift its attention to the Gauteng Province and begin investigating and hearing evidence relating to the following areas :-
- Johannesburg Management Area;
- Pretoria Management Area;
- Leeukop Management Area.
15. FINANCIAL MATTERS
- Prior to Judge Jaliís appointment an amount of R5.8 million was initially set aside by the Department of Correctional Services as an estimate of the amount to be spent on the Commission during the period of investigation.
- However on taking office and in studying the terms of reference more closely Judge Jali and his team considered the amount set aside as being too low for a thorough investigation to be undertaken.
- A comprehensive budget was then prepared by the Commission and the cost of the Commission was revised and a figure of around R10.5 million was arrived at and approved by the Department of Correctional Services.
- This estimate was based on the assumption that the Commission would spend approximately one (1) month at each prison during the course of its investigations.
- Regrettably due to the large amount of documentary and oral evidence of corruption and maladministration received by the Commission it soon became apparent that the Commissionís estimate of investigating one prison per month was rather optimistic with an estimate of one prison every two to three months being more realistic.
- The Commission has also been inundated with allegations of wrongdoing from prisons all over South Africa which has resulted in the Commissionís limited resources being stretched to full capacity.
- The inclusion of Grootvlei prison, the 9th prison was also not budgeted for and this has resulted in the urgent need for a revision of all the Commissionís initial budgetary estimates Ė a process which is presently underway.
16. CONCLUDING REMARKS
- The challenges and difficulties facing the Department of Correctional Services have become a matter of national interest. The public debate and discussion surrounding the matter if properly managed allows the Department an opportunity to implement a comprehensive programme of action to address the problems.
- The Departmentís commitment and transparency in its attempt to promote a culture of clean administration can only result in a positive image being created in the minds of the public that an honest and dedicated attempt is being made by government to clean up the countryís prisons and remove once and for all the corrupt members who continuously bring the department into disrepute.
- The investigations have however been far more extensive and time consuming than initially estimated and it has become patently clear that the investigation may take longer than initially anticipated.
- This being an independent judicial commission time should however not necessarily be the primary concern but rather that a thorough investigation be done to restore the image of the holding institutions in the country once and for all, not forgetting that five or six investigations into the Department have already previously been undertaken.