Kohler Barnard’s Victims of Violent Crime Bill

Meeting report

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
22 June 2007
KOHLER BARNARD’S VICTIMS OF VIOLENT CRIME BILL
 
Chairperson:  Ms P Mentor (ANC)

Relevant Documents:
Fund for Victims of Violent Crime Bill
Victims of Crime: June 2007 presentation
Democratic Alliance: Discussion Document on the Rights of Victims of Crime
Democratic Alliance Executive Summary:Discussion Document on the Rights of Victims of Crime

Audio Recording of the Meeting

SUMMARY
Mr Trent had previously intended to bring a submission to amend the Public Finance Management Act, but after a request from the Minister of Finance, Mr Trevor Manuel, had withdrawn it. The Committee as concerned that departments appeared to be proposing amendments as soon as Members did, and agreed that processes must be followed and matters could not simply be withdrawn. The Committee intended to convey these issues to the Minister of Finance and Mr Trent and call upon Mr Trent still to speak to his proposal, the time frames, and the content. If necessary the Committee might still wish to proceed with it.

Ms D Kohler Barnard (DA) briefed the committee on her legislative proposal that the victims of crime should be treated with greater consideration. Almost 23% of the adult population of South Africa had been victims of crime, and there were severe economic and social consequences. The justice system be repositioned to accord them greater weight, and that in particular the State should set up a fund to compensate the victims of violent crime. She outlined the key rights of victims, the forms of victim support that were currently available and what kinds of victim support were needed to fill the gaps and ensure that victims’ rights were truly provided for. Members addressed a number of issues, including the cost implications, whether the criminal should first have been convicted before the compensation was paid or whether proof of harm would
suffice, the position in other countries, the ambit of the current legislation, charters and Criminal Assets recovery, whether similar proposals had been put forward in another venue, and the need to obtain input from other role players. It was agreed that Ms Kohler Barnard's proposal was meritorious, and she was asked to produce some further results of research, and to address specific issues. It was resolved that the Departments of Justice, Social Development, Correctional Services, the National Prosecuting Authority, National Treasury and the Human Rights Commission be asked to make input.

MINUTES
Mr E Trent’s Public Finance Amendment Bill
Ms Mentor had just received information that Mr Trent had withdrawn his submission for amendments to the Public Finance Management Act (PFMA) in accordance with a request by Finance Minister Mr Trevor Manuel. He offered his apologies for any inconvenience caused.

Ms Mentor suggested that the Committee accept the apology but would like to express her disappointment on the withdrawal. She asked Mr Swart if he could clarify the matter.

Adv P Swart (DA) clarified that after the Committee’s Tuesday meeting he had informed Ms Kohler Barnard and Mr Trent, both DA members, that they would present. Mr Trent informed him that he had been contacted by the Minister of Finance, who advised that the Department was already planning amendments that would incorporate Mr Trent’s proposal. Adv Swart advised him that he should have withdrawn through the Speaker.

Adv Swart said that there seemed to be a pattern that when a member brought a proposal to the committee then the department would indicate it was busy with amendments. The Committee was under obligation to bring bills before Parliament to put in place legislation to execute service delivery and ensure security for the people. He felt that the Committee should send some message to the Executive that they could not hijack every proposal that members put forward for the benefit of the people by suddenly stating that the Department was then busy with it. .

Mr H Bekker (IFP) added that he was aware that the Minister was correct, and that Treasury and the Auditor General’s office were looking at certain aspects of the PFMA.

Mr S Mshudulu (ANC), wished to talk to the culture and character of the committee. The Committee had oversight by following up on departments as well as the Executive. Submissions to this Committee were always seen as an endeavour to close gaps that existed in the legislative framework, with the objective of addressing a national or personal interest. It was a wrong perception that this Committee, after something had been tabled, did not acknowledge the process. Any Member of Parliament, in his own capacity, was expected to have explored all other avenues before bringing a proposal here. Mr Mshudulu believed that Mr Trent should still appear before the Committee, so that it could benefit from what he said and draw its own conclusions. There were administrative issues to be followed. He asked the Chairperson to communicate with the Minister that because the matter was on the Order Paper, that process must be respected. In addition he asked that it be made clear that this Committee had never been dictated to by any Department or group, and that whoever sponsored a bill was fairly treated. Departments should not comment on Bills unless invited or asked in writing to take over a matter.

The Chairperson agreed, and said these points would form the basis of the correspondence to Mr Trent and the Minister.

Ms S Rajbally (MF) stressed that the Committee should be taken seriously and that any person making a submission should still appear. In addition, Treasury should have contacted the Chairperson.

Ms Mentor agreed that all the comments were very important and would be captured in her correspondence. The following points would be made:
1) Mr Trent should have presented himself, together with a letter explaining matters to the Committee, as if it were not for the intervention of Adv Swart this would not have been brought to the attention of the Committee.
2) It was expected of Members of Parliament that they must take the Committee seriously and no process could be withdrawn by "a gentlemen’s agreement" outside Parliament. She took strong exception to the manner in which this was arranged between the Minister and Mr Trent;
3) This committee was also very important in terms of affirming Parliament’s rights and the rights of Members of Parliament as legislators in their own right and did not always depend on the executive to reach a solution.
4) For these reasons the Committee would still expect a presentation from Mr Trent, and a meeting would be set up.

She noted that it was still unclear exactly why Mr Trent had agreed to withdraw. The Committee did not even know the time frames expected for the amendment and Ms Mentor felt that therefore the Committee could not accept the withdrawal. If necessary she would take the same amendment and propose it in her own name because she thought it was a very good issue.

Adv Swart informed the Chair that Mr Trent was in Parliament at the time; he would try to contact him and ask him to still present to the meeting.

Ms D Kohler Barnard's Victims of Violent Crime Bill
The Chairperson explained the procedure, that the sponsor was asked to appear before the Committee to explain the logic behind the proposal, its objects, what it sought to address and what were the shortcomings of the existing situation and the problems that would be solved by the proposal. The Committee would normally engage with affected departments, who could also be asked to brief the Committee. It could also contact other Portfolio Committees. Ms Kohler Barnard would be free to attend these meetings, but could only motivate her proposal at the first hearing.

Mr Mshudulu asked that the DA logo be removed from the documents, noting that the proposal was being submitted in her own name and not by the party.

Ms Kohler Barnard agreed that this was not a Democratic Alliance presentation, but was presented as a personal proposal, after much deliberation. She believed that every Member of Parliament was likely receiving a number of indications that people were in dire financial straits after suffering, and often having to pay medical bills from being affected by crime, while the criminals either disappeared or were out on bail. The situation was dire. It was acknowledged that virtually every South African had been affected by crime either directly or indirectly through a colleague, neighbour or loved one. The last National Victims of Crime Survey in 2003 indicated that almost 23% of the adult population of South Africa had been victims of crime. There were severe economic and social consequences to both victims and broader society. These could range from being unable to work due to physical injuries, high levels of post-traumatic stress, which impacted negatively on the person and the family, the direct financial costs of attending court, legal fees, and insurance excesses. The ripple effects were also felt by people not immediately connected with the crime incident itself.

Although, statistically speaking, the crime rate may have recently dropped 1% or 2% in certain categories the overall crime rate was in excess of international norms. In addition, given that the reporting rate on crimes was generally low, as approximately 32% of victims did not report crime to the SA Police Service (SAPS), it was possible that the actual crime rate was much higher than indicated by official statistics. The vocal dismay and anxiety surrounding the crime rate was not simply due to social perceptions. More people had been affected by crime than those who had not.

Rape was one crime that was under-reported. Experts estimated that only one in ten rapes was reported to the police. 54 907 rapes were reported to the SAPS last year, but the horrifying reality was that over half a million women could have been raped in South Africa each year. Reporting was also particularly low for crimes such as domestic violence, sexual assault and crimes against children.

In South Africa many victims of crime complained that they were victimised twice, first by the criminals and then by the criminal justice system, which emphasised crime as an offence against the State, not the individual, and displayed insufficient concern for the plight of victims. Victims stated that the system often gave them little or no information on the processing of their cases and little or no voice in the ultimate resolution of those cases.

By not placing more emphasis on the rights of victims of crime, the government was failing to fulfil a key responsibility to its citizens. Ensuring victims’ rights was crucial in order to provide acceptable levels of human rights to South Africans, and uphold the justice system. This bill was aimed at redressing the balance.

Ms Barnard outlined that a victim of crime had needs that included access to justice, fair treatment, feeling safe, information about the case, proper assistance and service, the need to be heard and acknowledged and the need for restitution and redress. Punishment of the criminal should not be seen as the only priority.
Access to specific health services and prophylactic drugs for victims of rape were also important. Although there was a range of interdepartmental policies, South Africa did not have specific measures in place to provide for some of these rights.

Currently, three major policies formed the backbone of South Africa’s current victims’ policy environment. These were:
1. Service Charter for Victims of Crime or “Victims Charter” – Ministry of Justice;
2. Victim Empowerment Programme – Department of Social Development;
3. Uniform Protocol for the Management of Victims, Survivors and Witnesses of Domestic Violence and Sexual Offences – National Prosecuting Authority.

Existing legislation that referred to the rights of victims of crime included the Domestic Violence Act No. 116 of 1998, the Children’s Act of 2005, the Sexual Offences Act (presently with the NCOP) and the Probation Services Act No. 16 of 1991. Although the Criminal Procedure Act allowed the presiding officer to order compensation to be paid to the victim, the reality was that many cases were struck from the roll, withdrawn or dismissed due to lack of evidence. In order to ensure that perpetrators were brought to justice, major improvements were needed in the criminal justice and safety and security sectors.

The Victims’ Charter was designed to confer defined rights on victims and both the Charter and the supporting Minimum Standards set out what service victims of crime were entitled, as well as useful contact details. Despite its strengths and relevance, it fell short in some areas of content. It had only been approved by Cabinet. The Department of Justice was still finalising implementation plans for all relevant government departments, which would be submitted to the Justice, Crime Prevention and Security cluster for approval. The Charter was therefore not yet in effect.

The Victim Empowerment Programme (VEP), which was developed out of the National Crime Prevention Strategy, focused on all victims, particularly women, children and rural communities. It was developed by the Department of Social Development and was intended to refer to both government and civil society providers of services to victims. It had produced some positive results, and since its establishment in 1999 approximately 200 projects had been established.

The Uniform Protocol for the Management of Victims, Survivors and Witnesses of Domestic Violence and Sexual Offences was complimentary to the Victims Charter and the Service Charter for Victims of Crime.  Service providers were expected to implement mechanisms for monitoring and evaluation, as determined by an authorised body, and satisfy all the requirements of the protocol. It had been very difficult to implement it and repeated attempts to get an update on the status of the Protocol from the National Prosecuting Authorities indicated that it was probably not functioning. These difficulties would be addressed in her proposal.

Neither the Charter nor the VEP made any provision for compensating victims. Ms Kohler Barnard's proposal did make provision for a State fund for victims.

Ms Kohler Barnard stressed that her proposal sought to make the victim the central focus of the criminal justice system. Although the criminal justice system must identify criminals, it must at the same time direct attention to the requirements of the victim. A Victims Policy was needed, and the right to compensation must be focused on to avoid the current situation where people were suffering enormous hardships.

Therefore, in summary, she proposed the establishment of a fund to which victims may apply for compensation. The basis of the Fund would be various sources such as fines imposed by the courts, bail money, moneys that may be appropriated by Parliament, donations or bequests made to the Fund from individuals or corporations and monies raised from the sale of assets seized by the State. There was also the suggestion that perhaps criminals serving jail sentences should be required by law to put a portion of any income during their sentence to paying restitution to the victims. This would be subject to auditing by the Auditor General and to Parliamentary oversight. The Fund would be managed by trustees appointed by the Minister of Justice. The Minister must make regulations as to how that fund would be managed.

A perpetrator would have to be found guilty of the crime before the compensation could be paid to the victim. Considering the difficulties in apprehending the criminal there may be at this stage room for a panel of experts who would decide whether that person had been the victim. This would have to be very carefully monitored and extremely well controlled to avoid any possibility of fraud. Victims also must be allowed to participate in the decision

Proceeds from the Criminal Assets Recovery Account (CARA) could also be used to set up a fund for victims of crime. R200 million had been paid out directly to victims of crime as at October 2006. More than R66 million was paid out to victims of financial crime in 2005. There was therefore precedent for compensation for victims of financial crime. Her proposal to set up a dedicated fund for victims of violent crime was not introducing groundbreaking principles, since restitution and compensation schemes were increasingly being used worldwide but would address the legislative gaps.

Ms Kohler Barnard concluded that it was her belief that the justice system must be repositioned to ensure that victims of crime were compensated. Once the whole system was improved the Fund could be implemented well and a strong will was needed to concretise the rights of the victims of violent crime. 

Discussion
The Chairperson could not see a date or stamp from the Speaker's office and wondered if the proposal had followed the correct channels.

She agreed that the proposal hinged on the repositioning of the justice system and had serious implications on it. Crime was a worldwide phenomenon, and the Committee could not dispute the levels of crime, and must agree that it was an issue on which Parliament must focus. She suggested that the Committee would need to call on Ms Kohler Barnard to give examples to the Committee of countries where a compensation fund was established and operating. The Committee would also have to call in the Departments of Justice, Social Development, the National Prosecuting Authority (NPA) and National Treasury.

The Chairperson indicated that before she became a Member of Parliament, she had been called upon to assist in a matter where a sixteen year old had been repeatedly raped for a number of years by her stepfather. When this was discovered she was placed in a protection unit. The case dragged on for three years before the stepfather was acquitted, despite having been found in the act by his wife. However, during the three years under protection, the sixteen year old was educated at a private school, her younger sibling was placed in a private crèche and her mother was able to complete her matric and undertake studies in computer literacy. While the family was housed in State facilities, the mother was put on the list for an RDP house, and given a grant for groceries, school uniforms and transport. All of this was a form of state compensation.

The Chairperson asked Ms Kohler Barnard to explain whether by compensation she meant direct financial investment from the State to the victim or whether she would consider other kinds of State assistance that were not direct financial compensation into the hands of the victim.

Adv Swart agreed that this was a very good proposal. He noted that the proposal was geared to Victims of Violent Crime. He asked if any of the programmes or legislation already mentioned made provision for compensation for victims of violent crime. He noted that a similar concept led to the setting up of the Road Accident Fund where the State could compensate a person for injuries suffered through the negligence of other drivers. The Workmen’s’ Compensation Fund operated on similar lines. These were not punitive damages. Adv Swart noted that Ms Kohler Barnard had said that the Fund should be applicable if the accused was found guilty. No such criminal findings were necessary for the Road Accident or Workmen's Compensation funding. He  asked whether her intention was that the Fund she proposed would operate along similar lines. He agreed that it was distressing that a victim of financial crime could be compensated although a child whose parent had been killed was not.

Ms Kohler Barnard responded that indeed the funds Adv Swart referred to were seen as the State's responsibility and were funded by contributions. It should equally be the State's responsibility to keep individuals safe, but there should not be any direct tax on individuals, as their safety was guaranteed in the Constitution. Specifics would be worked out by regulations, and would probably use similar principles to insurance compensation. Although CARA and compensation provisions through the Courts existed, this related to goods and chattels, and not to physical or psychological injury through violent crime.

She noted that the issue of being convicted was in the proposal, and was necessary to prevent fraud, to prove that the victim was injured by that accused following a violent crime. That issue must to be discussed by other bodies.

Adv Swart also asked whether the compensation was intended to cover medical expenses, future medical expenses, loss of income due to injuries, loss of support for children and future loss, and general damages of pain and suffering.

Adv Swart thought there was a need to look at comparative studies outside South Africa and whether there was legislation considering the human rights issues of those injured by others.

Ms Kohler Barnard noted that she had referred to eighteen specialist documents including the National Victims of Crime Research 2003, and would be quite happy to forward a list of references used. There were no references to the laws in other countries and she would prepare that document.

Mr Mshudulu mentioned that the reason for the presentation was not to interrogate Ms Kohler Barnard, but for the Committee to benefit from her presentation. She still needed to state what processes should be followed. If a public hearing was needed, then she must assist the Committee. She had raised broad issues. The Human Rights Commission must be consulted and have the opportunity to present. He believed the proposal needed to be backed up with research. He believed that Ms Barnard might be a Member of the Portfolio Committee on Justice and asked whether similar bills had been presented there. He would also like to know what Correctional Services had done about this issue.

Ms Kohler Barnard pointed out that she was not a member of the Justice Portfolio Committee, but of Safety and Security. She was very well aware of the difficulties in the apprehension of criminals.

Mr Y Wang (ANC) asked for clarification on Section 3 (2) of the proposal and asked whether victims were to be compensated from the Fund as well as other sources.

Ms Kohler Barnard said that she had used the word "recompensed", not "re-compensated".

Adv Swart explained that compensation was being compensated for loss; recompense meant "may get something".

The Chairperson asked for clarification of the word "may".

Ms Kohler Barnard clarified that a panel of trustees appointed by the Minister would make the decision, based on whether they were satisfied that the person was a victim who had suffered loss.

The Chairperson said the real issue was that a victim might not be compensated.

Ms Rajbally requested that Ms Kohler Barnard forward to the Committee examples of compensation that had been paid out, and from which source. This would enable the Committee to consider the best way of achieving the aims of the proposal.

The Chairperson added that the Committee must also seek assistance of the relevant departments.

Mr Bekker noted that this was a complex proposal and that the procedures would also need to be considered. The financial implications were serious. The proposal mentioned that funding could come "from Parliament" and this meant that the Committee could not make a decision on its own, but would need to hear whether it was possible to set up such a Fund. He agreed that the proposal was an excellent gesture. He noted that as Ms Kohler Barnard had stated, many perpetrators of crime were never brought to trial, and so there were cases where the victims could never be compensated.

Mr Kohler Barnard agreed that the financial implications could be horrendous to the State, but pointed out that currently the financial implications to the victim were equally horrendous, particularly if the victim lost his or her job.

Mr Mshudulu suggested that future presentations must be more focused and more simply worded. He still had an idea that this issue was already in discussion elsewhere and wanted to get clarity on this issue. He asked for a copy of the Charter to see how it linked to the Constitution.

Ms Kohler Barnard said that the proposal was essentially aimed at compensating victims of violent crime.

The Chairperson asked whether the Charter was with Cabinet and whether it was classified.

Ms Kohler Barnard replied that it had been approved by Cabinet, was in circulation and she would get a copy.

Adv Swart felt there was a need to focus on exactly what was in front of members in terms of the proposal. He agreed that the financial issues were serious, but the cost in itself was not the factor in deciding whether the proposal had merit and filled gaps in the legislation.

Mr Mshudulu explained that there were two phases in the Committee process. The first presentation gave clarity to the Committee, and the sponsor would take advice on how to construct her input, and be guided by the questions.

The Chairperson added that the Committee could give advice, as in the past, and her role was to facilitate  discussion and to eliminate problems before the next meeting. She agreed that the PowerPoint presentation had covered too wide a scope, and did not focus on the essential repositioning of the Justice system.

Ms Kohler Barnard explained that when she used the words "repositioning of the Justice System" she did not in any way suggest that the apprehension of criminals should be down-scaled, but rather that equal attention must be given to the victim. It would not be a physical repositioning of the Justice system, but a meaningful readjustment.

The Chairperson related an incident she had been involved in a few months back, where she had had to explain to the mother of an accused that his crime had not only affected the family, but affected the security of the State, and thus had to be brought to trial. It was necessary to achieve the correct balance, in the same way, between victim and State. The issue perhaps was not whether there must be a conviction. She herself had recently been shot at by striking teachers, once when her daughter was also in her car. No one had been apprehended despite witnesses having seen the vehicle. There was therefore no "criminal" or "accused" yet she and her daughter had been put under severe emotional stress. It was necessary to look carefully into the issue of what would happen in these circumstances.

Ms Kohler Barnard was very sorry to hear of the Chairperson’s ordeal, and stressed that this was precisely the kind of situation that led to her proposal. The Safety and Security Committee heard every day about the problems of victims. She was convinced that someone in the Chairperson's position at the very least must receive trauma counselling which must be paid for by the State. Perhaps it would be better to say that "sufficient proof" of the victim's trauma would be required for compensation, otherwise many people could be disbarred. Some method must be found to get past the possibility of fraud yet provide for the victim's rights.

Adv Swart also related a matter when a perpetrator was apprehended and taken to hospital in a helicopter, whilst the wounded victim had to call and pay for a private ambulance. There was clearly an imbalance.

Ms Rajbally asked for further details as to who could be compensated by the Road Accident Fund.

Ms Kohler Barnard would prepare input for the next meeting on this issue.

Ms Mentor asked the Committee Secretary to write to the Departments of Justice, Correctional Services and Social Development, National Treasury, the NPA, and the Human Rights Commission, sending them a copy of the proposal, and inviting them to attend the next meeting to assist the Committee in its deliberations. A letter was also to be addressed to the Portfolio Committee on Justice to ask if this matter had come before them, and whether there had been any public hearings around the issues.

Chairperson's report on forthcoming petition
The Chairperson briefed the Committee that recently a gentleman had interrupted National Assembly proceedings, claiming that he had been badly treated by the State and wished to obtain back his documents proving his citizenship of South Africa. She had taken it upon herself to find out what his claims were. It appeared that he had been imprisoned from the 1970s for his part in the liberation struggle, but was allegedly carrying false Ethiopian identity papers at the time, and was deported to Ethiopia. He claimed that with the assistance of Mr Mandela, Mr Sexwale and the Minister of Foreign Affairs, he obtained documentary proof that somebody else had falsely obtained his own ID, but was trying to retrieve these documents from State sources. She had informed him that if he was a South African citizen, he could petition Parliament, and advised him to lodge his petition with the Speaker's Office. He had recently confirmed to her that he had followed that route, and apologised for disrupting parliament. She wished to tell the Committee that she had approached him in her capacity as Parliamentarian and Chairperson of the Committee.

Ms Rajbally felt that his apology for disruption should be put in writing and forwarded to the Presiding Officer.

The meeting was adjourned.