Parliament is required to exercise oversight on the department of correctional services (DCS) in relation to the implementation of the remedial actions taken by the Public Protector on the report on Thabo Bester’s prison escape.
In addition, parliament must ensure that such remedial action is fully complied with.
This was revealed on Monday by parliament’s legal services team during parliament’s portfolio committee on correctional services virtual meeting.
Committee mandate limitations
During the meeting, the committee received a briefing from the parliamentary legal services. The briefing was on how to process the Public Protector’s report on the escape of Thabo Bester from the Mangaung Correctional Centre, given the committee’s mandate.
There is currently ongoing litigation related to a contractual dispute between the DCS and security company G4S. In light of this, the committee wanted to know if Rule 89 of the National Assembly Rules prohibits the committee from exercising its obligation. The obligation to act on the report as directed by the Public Protector in her remedial action.
The National Assembly’s Rule 89 deals with matters sub judice. It states that no member of parliament may reflect upon the merits of any matter on which a judicial decision in a court of law is pending.
Public Protector report points finger at DCS
In September, Public Protector Advocate Kholeka Gcaleka made findings that DCS personnel acted improperly in the matter. They took too long to notify the police about Thabo Bester’s prison break.
Gcaleka directed the speaker of the National Assembly to act within 30 days of receipt of the report. She must bring to the attention of the chairperson of the committee to take cognisance thereof. This in line with the powers contemplated in section 55(2) of the constitution.
Parliamentary legal advisor Bulelani Simani detailed the overarching constitutional mandate of the committee. He said it is to ensure accountability and exercise of oversight functions over the DCS.
Simani said the sub judice rule does not operate as a prohibition on the committee fulfilling its constitutional mandate. This is including that of oversight.
“The committee will be considering the findings and remedial action the of the Public Protector’s report. [It] will not be considering the merits of pending litigation matter between the DCS and G4S. In the event that an issue related to the G4S contract arises… members may discuss the issue. [They may do so] without commenting on the merits of the pending litigation.
Committee given green light despite G4S court case
“In this matter, the overarching constitutional mandate of the committee is to ensure accountability. To also … exercise of oversight functions. And in this instance, the committee is required to exercise oversight on the DCS. This in relation to the implementation of the remedial action taken by the Public Protector. And also ensure that such remedial action is fully complied with. This in terms of section 55(2) of the Constitution,” said Simani.
He said that it is his considered view that Rule 89 of the NA Rules, read with the constitutional provisions, does not preclude members of parliament from complying with the remedial action taken by the Public Protector.
“NA Rule 89 has very limited application in the members may not reflect on the merits of the pending litigation. Therefore, I am of the view that in this context, the committee has a constitutional duty. That of overseeing and monitoring the implementation by the DCS of the remedial action taken by the Public Protector. The remedial action taken by the Public Protector is binding, and therefore must be complied with,” said Simani.
Mangaung Correctional Service Facility is a private prison managed by multinational security company G4S.
G4S is paid R44-million per month to manage the private prison. Mangaung is the second private prison in South Africa managed by a multinational for the government.
DCS vs G4S
DCS told parliament last year that it would terminate the G4S contract and run the facility itself. But the company took them to court to protect its multimillion-rand contract.
In her report, Gcaleka said after learning that convicted rapist and murderer Bester had staged his own death and broke out of his prison cell in May 2022, DCS officials had not acted quickly enough.
The DCS took at least six months to open an escape case with the police. This according to Gcaleka’s investigative report. It was after the DCS was notified of Bester’s escape in June and August of 2022. They were notified by the Judicial Inspectorate for Correctional Services and the SAPS, respectively.
Gcaleka’s report relates to an investigation into alleged improper conduct by officials of DCS. This as well as allegations of failure by former deputy minister of correctional services, Phathekile Holomisa, to intervene regarding the incident.
Gcaleka found no wrongdoing on the part of Holomisa.
