Approval of Treaties; Limitation of Legal Proceedings Against Government Institutions Bill: discussion

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Justice and Correctional Services

11 September 2000
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Meeting report

 

JUSTICE PORTFOLIO COMMITTEE
12 September 2000
EXTRADITION TREATY BETWEEN RSA AND AUSTRALIA: RATIFICATION
UNITED NATIONS AFRICAN INSTITUTE FOR THE PREVENTION OF CRIME AND THE TREATMENT OF OFFENDERS TREATY; ESTABLISHMENT OF THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS PROTOCOL; LIMITATION OF LEGAL PROCEEDINGS AGAINST GOVERNMENT INSTITUTIONS BILL [B 65 – 99]: CONSIDERATION

Documents handed out:
- Reports in terms of the Magistrates Act, 1993, regarding suspension of Magistrates of Port Shepstone and Nqamakwe.
-
Draft 5 of Limitation Of Legal Proceedings Against Organs of State Bill
- Remuneration determined by the Public Protector for staff in his office
- Draft report of the Committee on the document setting out remuneration determined by the Public Protector
- Letter from Master of High Court, Grahamstown

Chairperson: Advocate JH De Lange

SUMMARY
A resolution to ratify the Extradition Treaty between RSA and Australia
was unanimously approved by the Committee. The Chairperson said the Department has to come up with a better procedure to bring signed treaties to Parliament speedily for ratification.

Regarding the Accession to Statute of the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders, the Committee was uncomfortable about giving immunity and privileges to police personnel from various states. The Committee requested more information on the UNIFRA personnel in order to be able to make an informed decision on the issue of immunity to be afforded them. The Chairperson undertook to take up the issue with the Minister.

On the Protocol dealing with the establishment of an African Court on Human Rights, the Chairperson instructed the Department to seek clarity on the issue of the constitutionality of making the African Court higher than the Constitutional Court. He said he would engage the Minister to hear what his views are on the possible conflict of precedent of the African Court and the Constitutional Court. The Committee required legal opinion on whether any amendments to the Constitution would be necessary to accommodate this Protocol. The Department was instructed to find out how the European Court and member states deal with precedent and how they provide for this in their constitutions. The Chairperson said it would have to be spelt out clearly in the Declaration that cases already decided on by the Constitutional Court will fall outside the jurisdiction of the African Court.

On the issue of remuneration set by the Public Protector for his staff, the Committee decided that the Ministers of Finance and Justice as people more accountable to Parliament should give confirmation that they agreed to the contents of the Document the Committee was required to approve.

A letter from the Master of the High Court of Grahamstown informed the Committee that the High Court has declared the provisions of clause 3(1) of the Regulations in terms of the Black Administration Act to be invalid, unconstitutional and of no force and effect. This has the effect of ousting the jurisdiction of the Magistrates Court in respect of Black intestate estates and placing the responsibility with the Master to register and oversee their administration in terms of the Intestate Succession Act, 1987 and the Administration of Estates Act, 1965.

The committee deliberated on Clause 4 of the Limitation Of Legal Proceedings Against Organs of State Bill.

MINUTES
Extradition Treaty between RSA and Australia

Mr Cronje of the Department said treaty was signed on 13 December 1995 and then submitted for Parliament’s ratification. However, before such ratification Australia requested that further negotiations take place with a view to amend section 5(2)(a) to (c) of the Treaty to accommodate amendments to the South African Extradition Act,1962 that came into effect on 17 January 1997. The original treaty was then withdrawn before ratification. The Treaty was finally signed on 9 December 1998 and tabled at the end of 1999.

The Chairperson expressed shock that a treaty signed some two years ago and tabled a year ago, only comes for ratification now. He said there must be something wrong with the system and instructed Mr Cronje to talk to the Director General in the Department and come up with a procedure whereby ctreaties could be signed and rapidly come for ratification.

The Chairperson asked if a treaty like this one could override the Extradition Act.

Mr Cronje said he would like to research what happens in the case of a conflict between the Treaty and the Act since once ratified, the Treaty becomes part of the South African law.

Adv Masutha (ANC) said a treaty is a contract between two states and it gives rise to obligations, the breach of which could lead to litigation in the International Court. A possibility could be that the State in breach may claim as a defence that it was prevented by its own domestic law from fulfilling the obligation.

After ascertaining that the committee did not have any problems with any part of the Treaty, the Chair read out the resolution of the Committee to ratify the Treaty. The resolution was unanimously accepted by the Committee.

Accession to Statute of the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders
Mr Cronje told the Committee about the proposed change to the resolution on this treaty. In the original resolution it was suggested that the treaty would be binding on the Republic and shall be part of our law. After consultation with State Law Advisors and International Law experts it was suggested that the resolution should follow the wording of section 231(2) of the Constitution. Thus the resolution will provide that the treaty "binds" South Africa after Parliament approves the said Protocol instead of saying it shall form part of our law.

This treaty deals with the sharing of information and resources in the prevention and control of crime. South Africa has been invited to be a member of the United Nations African Institute for the Prevention of Crime and Treatment of Offenders (UNAFRI). The Institute’s main object is to promote harmonious socio-economic development in the countries of the African region. This would be through incorporation in national planning of suitable policies and programmes for crime prevention and criminal justice as a means of reducing the potentially negative side-effects of dysfunctional growth and attendant change in their human and material costs. In May 1996 Cabinet approved acceptance of the invitation and directed that the South African delegation convey this to the Director of UNAFRI at the Fifth UN Congress on Crime and the Treatment of Offenders.

The Chairperson asked what potential problems with accession to this treaty had been envisaged (as expressed in paragraph 6 of the explanatory memorandum).

Mr Cronje said the State Law Advisors’ opinion was sought on whether accession to this treaty would not result in a conflict with South African municipal law. Comments were invited from the SAPS, the Commissioner for Inland Revenue and the Commissioner for Customs and Excise, since some provisions of the Statute could be in conflict or affect legislation administered by these functionaries.

The opinion was that immunities and privileges of UNAFRI and its personnel will be conferred under the Diplomatic Immunities and Privileges Act, 1989 and there would be no problems in this regard.

The Chairperson said he was of the view that immunity is not for staff but the Institute.

Mr Cronje said it is for certain officials of the Institute as well. Dr Delport (DP) pointed out that the Diplomatic Immunities Act provides for this under section 3.

Mr Jeffery (ANC) noted that the memorandum to the treaty says section 3(4) of the Diplomatic Immunities Act provides that "any…institution recognised by the Minister of Foreign Affairs and a member, agent or officer of or any delegate or any permanent representative…shall enjoy such privileges and immunities…". He said the Committee needs to know if the Minister of Foreign Affairs recognises UNAFRI. He said while it might be possible to give non-South Africans immunity in terms of the Act, this cannot be extended to South Africans. He added that he is merely raising the problem, not offering any solution.

The Chairperson agreed that the issue needs to be looked at. He said the SAPS comment for instance says they agree that immunity may be extended to UNAFRI personnel but that they would want to retain powers of search and seizure which is contradictory.

The Chairperson said he was uncomfortable with the idea of giving immunity to police personnel from various states especially since every crime syndicate that has been caught, had a policeman in it.

Mr Jeffery said the Committee needs to know the staff composition, numbers and selection procedures in order to be able to make an informed decision on the issue. The Chairperson agreed and asked Mr Cronje to find out for the Committee. He said he would personally take the issue up with the Minister to see what his views are.

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights
Mr Cronje said South Africa acceded to the Charter on 9 July 1996. Signatory states are required to submit periodic reports to the African Commission indicating programmes and policies being undertaken to implement the Charter and South Africa lodged its first report in April 1999.

Mr Cronje said the Charter is to ensure that human rights are given recognition in member states’ jurisdiction. He said the last time the Committee discussed the this Protocol, questions had been raised about jurisdiction. Jurisdiction is dealt with by Article 3 of the Protocol. Article 28 deals with judgement and provides that the judgement of the Court is final and not subject to appeal. He said the view of both the Chief Justice of the High Court and the President of the Constitutional Court is that this should not deter South Africa from acceding to the Protocol as this is a natural consequence. The judgement of the European Court is also final.

Members were interested to know what happens where South African precedent on constitutional matters conflicts with a decision of the Court. Dr Delport said he is worried that the Constitutional Court and other courts are in the process of evolving jurisprudence in human rights law and (as a result of judgements of the African Court) a parallel interpretation may develop that may cause confusion in South African law.

The Chairperson agreed that interpretations of the same issue might take different directions in local courts and the African Court, for instance, in the South African Constitution judicial values are made subject to the equality clause but not in the Protocol.

Mr Jeffery said it might be interesting to know how the constitutional provisions in European states cater for the situation when the decision of the European Court is in conflict with a member state’s court decision. This way the Committee would know what changes might need to be made in the South African Constitution in this regard.

Mr Jeffery asked what the difference is between the provision in section 231(2) of the Constitution that says an international agreement "binds the Republic" and the one in section 231(4) saying it is not law unless enacted as such by national legislation.

Mr Cronje said the binding part means South Africa is required to send a report to the Commission. The part saying the treaty is not law means it does not have force.

The Chairperson said the Committee needs to get the Declaration on who can bring cases before the African Court. He said it would have to be spelt out clearly in the Declaration that cases already decided on by the Constitutional Court will fall outside the jurisdiction of the African Court. This way the problem of a conflict raised by article 28 of the Protocol, saying that decisions of the African Court are final and binding while the Constitution provides that decisions of the Constitutional Court are final, would be eliminated. He said he would engage the Minister to get what he foresees would happen regarding precedent of the African Court and local courts. He said the constitutionality of the Treaty has to be expressed. He asked what would be the implications of passing something that has a potential of being in conflict with the Constitution e.g. making the African Court higher than our Court. He said the Committee needs to get legal opinion on this. The Committee also needs legal opinion on whether this is a self executing agreement.

Mr Cronje was instructed to correct the opinion that the Protocol is not a legal instrument.

Remuneration determined by The Public Protector For Staff of his Office (in terms of the Public Protector Act, 1994)
Mr Jeffery said it would be better to get confirmation from the people who are more directly accountable to Parliament, namely, the Minister of Finance and Minister of Justice that they agree to the contents of the document before the Committee.

The Chairperson agreed that the Committee needs to get confirmation from the Ministers of Justice and Finance and then they can finalise the matter without further delay.

Administration Of Estates Amendment Bill
The Chairperson said members will be receiving documents to look at on the rationalisation of the Master’s Office.

He said he had received a letter from the Master of the High Court in Grahamstown, Mr Moodley. The letter draws the Committee’s attention to the decision of the Transvaal Provincial Division of the High Court declaring clause 3(1) of the Regulations promulgated in terms of the Black Administration Act, 1927 to be invalid, unconstitutional and of no force and effect, delivered on 5 September 2000. The Court further ordered that the Master of the High Court register and oversee the administration and distribution of the intestate estates (of Blacks) in terms of the Administration of Estates Act, 1965.

Mr Moodley added that this situation needs to be addressed at all levels as a matter of urgency as the judgment places an "impossible burden on an understaffed, overworked and underfunded Masters Division".

Limitation Of Legal Proceedings Against Organs of State Bill (Draft 5)
The Chairperson said the Law Commission is to look at the Road Accident Fund Act regarding the issue of prescription.

Mr Labuschagne of the Department said he has drafted something regarding the Customs and Excise Act to say a notice would be given "only when the customs and excise officials are performing functions in terms of the Customs Act.

Clause 4
The Chairperson said Mr Labuschagne should check if "Subject" preceding the " to this Act" is appropriate in subclause (1).

In subclause (1)(a) the Committee agreed to retain "in question" as the better formulation.

In subclause (2)(a)(ii) it was suggested that "and" be inserted before the words "within six calendar months"

Mr Jeffrey said subclause (2)(c) does not mention that the original copy of a fax be sent as proof. This would prevent unscrupulous attorneys that might give themselves an extra seven days in which to give a notice. Members said that with electronic mail and faxes, it would be necessary to ensure that the fax or e-mail was actually received by the other side.

Mr Labuschagne referred the committee to the previous Draft 3 of the Bill where he had drafted Option 3B in clause 2(2)(c) which requires that within seven days of a fax / e-mail being sent, an affidavit be forwarded to the relevant officer or person which must provide proof of the date on which the fax / e-mail was sent, the number or address, and that the sending was successful be,. The affidavit has to be accompanied by a certified copy of the notice that was sent or transmitted.

Adv Schmidt (DP) agreed that once it is proved that the e-mail or fax was sent by means of an affidavit plus a copy of the original, the onus is satisfied. Otherwise it would be assisting the other party on whom service was being affected which is undesirable.

The Chairperson agreed that Option 3B is preferred, with perhaps some slight changes to tighten it in relation to problems raised by the Committee.

The Chairperson said the Department needs to draft something to say that the time runs from the time of the first sending and not from the time of the second sending (seven days) of the notice. The Department has to make a general provision to capture this and not spell out every step that needs to be taken to confirm receipt of the notice.

The Committee agreed that in subclause (2)(b) there is no need to say "acting as such" where the incumbent is not at the office and has appointed someone to act on their behalf.

The Chairperson suggested a clause be drafted to say that the creditor should briefly set out the facts and cause of action relied on for their action.

Mr Labuschagne said that under clause 2(2) he had drafted Option 1C which captures this formulation.

Mr Labuschagne said clause 4(2)(b)(i) does not provide receipt of notices by the Ministers. None of the Act the Bill intends to repeal provided for this but merely for "organ of state".

The Chairperson said if there is a gap, subclause (2)(b)(iii) could be used for receipt of notice by the Minister since it provides for "equivalent officer" which could be the Secretary to the Minister.

The Department was instructed to look at the proposed formulations. The meeting was adjourned.



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