Transfer of Convicted Prisoners Bill, Corruption Amd Bill, Fund for Victims of Crime Bill: Depts' response

Meeting report

STANDING COMMITTEE ON PRIVATE MEMBERS' LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS.
2 May 2001
BRIEFING BY DEPARTMENTS ON CORRUPTION ACT AMENDMENT BILL, FUND FOR VICTIMS OF CRIME BILL AND TRANSFER OF CONVICTED PRISONERS BILL

Chairperson: Mr PAC Hendrikse

Documents handed out
Department of Correctional Services Report on Transfer of Convicted Prisoners Bill (Appendix 1) Department of Justice Report on Transfer of Convicted Prisoners Bill (Appendix 2)
Department of Justice Report on the Corruption Amendment Bill (Appendix 3)
South African Law Commission Request for Comments on A Compensation Scheme for Victims of Crime in South Africa (Appendix 4)
A Compensation Scheme for Victims of Crime in South Africa (email [email protected] or [email protected] for this research document)
Transfer of Convicted Prisoners Draft Bill (Private Members' Bill)

SUMMARY
The Departments of Correctional Services and Justice commented on the private members' bills: Transfer of Convicted Prisoners Bill, the Corruption Amendment Bill and Fund for the Victims of Crime Bill.

MINUTES
Transfer of Convicted Prisoners Draft Bill
Mr C Paxton read the Correctional Service Department's Comments on this draft Bill.

Discussion
Adv H Schmidt (DA) inquired about the current procedure for the transfer of convicted prisoners and asked whether it was necessary to establish some form of a framework or agreement for the transfer of prisoners in future.

Mr Paxton (Department of Correctional Services) replied that if countries have entered into agreements, the relevant countries are bound by such an agreement.

Mr Rudman (Department of Justice) said that there was a need for a National Bill regulating the transfer of prisoners and that currently regulations relating to the transfer of prisoners were based only on agreement between countries.

The Chairperson asked whether, in the absence of agreements amongst countries, there was a general agreement about the transfer of prisoners for crimes other than those accused of genocide and war crimes.

Mr Paxton stated that generally it was agreed that criminals should serve sentences in the community where they committed the offence.

Adv Schmidt inquired whether the President has discretion to release individuals from prison.

Mr Paxton responded by saying that according to the Constitution the President has the power to pardon offenders

Adv Schmidt asked whether there was any legal basis upon which South Africa could insist upon the transfer of prisoners in the absence of an agreement amongst countries. Mr Paxton replied that there was no legal basis which could assist upon the enforcement of transfer of prisoners, only consent from other countries.

Corruption Act Amendment Draft Bill
Mr Rudman read from the Report of the Department of Justice and Constitutional Development on this draft Bill.

Discussion
Ms R Taljaard (DA) referred to the comments made by the Ministry of Justice and the Department of Public Service and Administration (DPSA). DPSA had commented that the Corruption Act Amendment Bill was premature. Ms Taljaard insisted that the Corruption Act Amendment Bill could not be considered premature since it has endured a minimum of four years development.

Mr Rudman stated the Ministry of Justice and DPSA were working with the Office of the National Director of Public Prosecutions (NDPP) to proceed with the proposed bill as planned.

Fund for Victims of Crime Draft Bill
Mr Rudman noted that the South African Law Commission's discussion paper contained recommendations and that the closing date for submissions/comments to the South African Law Commission was the 31^st July 2001.

Mr Gibson (DA), who is responsible for this draft bill, was not present and no discussion ensued.

Appendix 1
SUBMISSION BY THE DEPARTMENT OF CORRECTIONAL SERVICES ON THE TRANSFER OF CONVICTED PRISONERS: DRAFT BILL (PRIVATE MEMBERS' BILL)

The Department studied the contents of the Bill and the following can be pointed out:
- The proposed legislation will only provide for a Framework which will regulate the detention and transfer of sentenced prisoners who are to be transferred to or from another country without the incorporation of an agreement with any country which will be subject to such legislation.

- The Government will have to enter into an agreement with a particular country in order to give effect to the proposed legislation, which agreement will also have to be enacted to become law in the Republic. (Section 231 of the Constitution 1996, (Act No.108 of 1996).

- This is however the domain of the Department of Foreign Affairs in liaison with the Department of Correctional Services and Justice and in fact several discussions did take place with the Department of Foreign Affairs as to possibility to utilise the Commonwealth Scheme for the Transfer of Convicted Prisoners. Ihis scheme have the benefit that the if South Africa accede to it and it is incorporated in law, all the Commonwealth Countries are included and then it is not necessary to enter into a bilateral agreement with every country.

Further options like the European Convention on the Transfer of Sentenced Prisoners and the United
Nations Scheme are also possible alternatives.

I also attach hereto a diagram of the procedure to be followed to conclude an international agreement. (It is in terms of the Interim Constitution but it is in principle the same with the present Constitution).

Comments from a technical point of view are the following:
(i) The reference to "an indeterminate imprisonment" in clause 2 under the convicted prisoner are incorrect because imprisonment does not exist anymore unconstitutionality.
period of definition of this form of due to it's

(ii) The Bill does not provide for the costs of the transfer i.e. whether it should be the responsibility of the individual or of the transferring or accepting country.

(iii) If the Minister of Correctional Services is to administer the Act, as proposed the question is raised as to whether the provisions should not be incorporated as a chapter in the Correctional Services Act 1998, (Act No. 111 of 1998) and then adopting the same terminology to correspond with that used in the Correctional Services Act, 1998.

Appendix 2
REPORT BY THE DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT ON THE TRANSFER OF CONVICTED PRISONERS BILL
1. The Transfer of Convicted Prisoners Bill introduced by Adv HC Schmidt, MP, deals with issues which fall under the jurisdiction of the Minister of Correctional Services and it is noted from the agenda of the meeting of the Standing Committee on Private Members' Legislative Proposals and Special Petitions on 2 May 2001 that the Department of Correctional Services is to give a briefing on this Bill.

2. Mention should, however, be made of the fact that the Department of Justice and Constitutional Development is involved in the preparation and promotion of the International Criminal Court Bill, some provisions of which also relate to the transfer of prisoners. The following information in this regard is relevant for the information of members of the Committee:

3. On 17 July 1998 the United Nations Diplomatic Conference of Plenipotentiaries, at which South Africa was represented, adopted the Rome Statute on the International Criminal Court. This was the first step towards the establishment of a permanent international criminal justice system which is intended to complement national laws in the prosecution of individuals for crimes of international concern, namely genocide, crimes against humanity, war crimes and the crime of aggression. In terms of Article 125 of this Statute, the Statute was open for signature by all States until 31 December 2000. Thereafter it is subject to ratification by signatory States. South Africa has already signed and ratified the Statute.

4. As its long title suggests, the Bill is intended to incorporate the Statute into South African law, to implement and enforce the Statute in South Africa, to provide mechanisms to facilitate co-operation between South Africa and the International Criminal Court itself once it is established and to provide for the arrest and surrender of persons to the International Criminal Court. One of the above-mentioned mechanisms intended to facilitate co-operation between South Africa and the International Criminal Court is to be found in clause 31 of the Bill dealing with the enforcement of prison sentences, read with Part 10 of the Statute. Clause 31 sets out the procedures to be followed in South Africa in giving effect to Part 10 of the Statute.

5. Part 10 of the Statute reads as follows:

"PART 10. ENFORCEMENT
Article 103 Role of States in enforcement of sentences of imprisonment
1. (a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.
At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.
A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.

(a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or forseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.
Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.

3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:
The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;
The application of widely accepted international treaty standards governing the treatment of prisoners;
The views of the sentenced person; and
The nationality of the sentenced person;
Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.

4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.

Article 104
Change in designation of State of enforcement
1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State.
2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.

Article 105 Enforcement of the sentence
1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1(b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.

2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.

Article 106
Supervision of enforcement of sentences and
conditions of imprisonment
1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners.

2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.

3. Communications between a sentenced person and the Court shall be unimpeded and confidential.

Article 107
Transfer of the person upon completion of sentence
1. Following completion of the sentence, a person who is not a national of the State of enforcement may, in accordance with the law of the State of enforcement, be transferred to a State which is obliged to receive him or her, or to another State which agrees to receive him or her, taking into account any wishes of the person to be transferred to that State, unless the State of enforcement authorizes the person to remain in its territory.

2. If not State bears the costs arising out of transferring the person to another State pursuant to paragraph 1, such costs shall be borne by the Court.

3. Subject to the provisions of article 108, the State of enforcement may also, in accordance with its national law, extradite or otherwise surrender the person to the State which has requested the extradition or surrender of the person for purposes of trail or enforcement of a sentence.

Article 108
Limitation on the prosecution or punishment of other offences
1. A sentenced person in the custody of the State of enforcement shall not be subject to prosecution or punishment or to extradition to a third State for any conduct engaged in prior to that person's delivery to the State of enforcement, unless such prosecution, punishment or extradition has been approved by the Court at the request of the State of enforcement.

2. The Court shall decide the matter after having heard the views of the sentenced person.

3. Paragraph 1 shall cease to apply if the sentenced person remains voluntarily for more than 30 days in the territory of the State of enforcement after having served the full sentence imposed by the Court, or returns to the territory of that State after having left it.

Article 109
Enforcement of fines and forfeiture measures
1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.

2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.

3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.

Article 110
Review by the Court concerning reduction of sentence
1. The State of enforcement shall not release the person before expiry of the sentence pronounced by the Court.

2. The Court alone shall have the right to decide any reduction of sentence, and shall rule on the matter after having heard the person.

3. When the person has served two thirds of the sentence, or 25 years in the case of life imprisonment, the Court shall review the sentence to determine whether it should be reduced. Such a review shall not be conducted before that time.

4. In its review under paragraph 3, the Court may reduce the sentence if it finds that one or more of the following factors are present:
The early and continuing willingness of the person to cooperate with the Court in its investigations and prosecutions;
The voluntary assistance of the person in enabling the enforcement of the judgements and orders of the Court in other cases, and in particular providing assistance in locating assets subject to orders of fine, forfeiture or reparation which may be used for the benefit of victims; or

Other factors establishing a clear and significant change of circumstances sufficient to justify the reduction of sentence, as provided in the Rules of Procedure and Evidence.

5. If the Court determines in its initial review under paragraph 3 that it is not appropriate to reduce the sentence, it shall thereafter review the question of reduction of sentence at such intervals and applying such criteria as provided for in the Rules of Procedure and Evidence.

Article 111
Escape
If a convicted person escapes from custody and flees the State of enforcement, that State may, after consultation with the Court, request the person's surrender from the State in which the person is located pursuant to existing bilateral or multilateral arrangements, or may request that the Court seek the person's surrender. It may direct that the person be delivered to the State in which he or she was serving the sentence or to another State designated by the Court.".

6. The Department hopes to finalise this Bill during the course of the 2001 session of Parliament.

Appendix 3
REPORT BY THE DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT ON THE CORRUPTION AMENDMENT BILL

1. INTRODUCTION:
1.1 In his letter of November 1999 to the Chairperson of the Standing Committee on Private Members' Legislative Proposals and Special Petitions on the Corruption Amendment Bill introduced by Ms R Taljaard, MP, the Minister for Justice and Constitutional Development made reference to the fact that the Department of Justice and Constitutional Development, in the normal course of events, consults with the Directors of Public Prosecutions and the Department of Public Service and Administration (DPSA) in respect of legislative changes of the nature under discussion. (Annexure "A") Both the DPSA and the Department of Justice and Constitutional Development, in conjunction with the prosecuting authority, have been involved in developments relating to the fight against corruption, as indicated in this report.

1.2 The Minister also made mention in his letter of the 9th International Anti-Corruption Conference which took place in Durban in October 1999. This Conference was preceded by the appointment by Cabinet of a committee under the guidance of the Minister for Justice and Constitutional Development, the mandate of which was to make recommendations to Cabinet for a National Campaign Against Corruption. The report of this committee and subsequent Cabinet decisions gave rise to a number of anti-corruption initiatives, which culminated in the National Anti-Corruption Summit held in April 1999.

1.3 The resolutions emanating from this Anti-Corruption Summit can be categorised in the following 3 main themes:

(i) Combating corruption, involving the following:
* A review of legislation.
* Establishment of a whistle-blowing mechanism.
* Speedy enactment of the Open Democracy Bill (now called the Promotion of Access to Information Act, 2000.)
* Establishment of special courts to adjudicate on corruption cases.
* Establishment of Sectoral Co-ordinating Structures, representing the public sector, civil society and business.
* Establishment of a National Co-ordinating Structure to lead, co-ordinate, monitor and manage the National Anti-Corruption Programme.
(ii) Preventing corruption, involving the following:
* Blacklisting of individuals, businesses and organisations who are involved in corruption.
* Establishment of a National Anti-Corruption Hotline.
* Establishment of sectoral and other hotlines.
* Disciplinary action against corrupt persons.
* Consistent monitoring and reporting on corruption.
* Promotion and implementation of sound ethical, financial and related management practices.
(iii) Building integrity and raising awareness, involving the following:
* Promotion of research to analyse the causes, effects and growth of corruption.
* Enforcement of codes of conduct and disciplinary codes in each sector.
* Promotion of training and education in ethics.
* Sustained media campaigns to highlight aspects of the strategies.

2. INVOLVEMENT AND VIEWS OF THE DEPARTMENT OF PUBLIC SERVICE AND ADMINISTRATION:
2.1 Regarding the resolutions of the National Anti-Corruption Summit dealing with the establishment of sectoral co-ordinating structures and the establishment of a National Co-ordinating Structure, the DPSA has taken the lead and in August 1999 convened a cross sectoral task team with the view to establishing a National Co-ordinating Structure. Early in 2001 agreement was reached between representatives of the public sector, business and civil society on the establishment of such a Structure, the National Anti-Corruption Forum, which recognises that corruption occurs in all sectors of society and needs to be addressed by all sectors by way of partnerships. A copy of the memorandum of understanding reached between representatives of these 3 sectors on the establishment of a National Anti-Corruption Forum is attached as Annexure "B". The National Anti-Corruption Forum is expected to be fully functional within a few months.

2.2 In order to support South Africa's efforts in the fight against corruption, the Minister for the Public Service and Administration signed a co-operation agreement with the United Nations Office for Drug Control and Crime Prevention on 9 March 2001. South Africa has also started participating in the UN's Global Programme against Corruption. In terms of this agreement the following objectives are envisaged:
(i) Between May and November 2001, a thorough assessment in all sectors will be conducted to analyse the causes and trends in respect of corruption and the effectiveness of anti-corruption measures in those sectors.
(ii) The information derived from this assessment, together with the expert advice received from the UN, will be fed into the National Anti-Corruption Forum processes with the view to establishing a national anti-corruption strategy with supporting legislation, if and where necessary.
(iii) Detailed assessments of the capabilities of anti-corruption mechanisms in selected Government Departments will be conducted in order to establish best practices and to facilitate training. This will then be rolled out to other institutions. Similarly, the capability of the Office of the Public Service Commission to address systemic risks and the capability of the National Director of Public Prosecutions to investigate and prosecute corruption will be enhanced.
(iv) Tailor-made provincial anti-corruption strategies will also be developed.

2.3 Towards the end of 2000 Cabinet mandated the DPSA to convene a Public Sector Task Team to develop a Public Service Anti-Corruption Strategy which must be submitted to Cabinet by July 2001. This Sectoral Strategy must be implemented within the Public Sector and must also complement and inform the National Anti-Corruption Strategy. This Task Team, consisting of key Departments, including the DPSA and the Department of Justice and Constitutional Development, met from 17 to 20 April 2001 and is to meet again towards the end of May 2001 to finalise its mandate. A time frame has not yet been set for the finalisation of the national strategy. This will only be possible once the National Anti-Corruption Forum is in operation, once the objectives envisaged in the agreement between South Africa and the UN in its assistance programme have been achieved and once the Public Sector Anti-Corruption Strategy has been finalised.

2.4 Bearing in mind the above the DPSA comments as follows in respect of the Corruption Amendment Bill of Ms Taljaard, MP:
"Successful anti-corruption strategies require a multiplicity of supporting operational plans, a key element being effective legislation. The current fragmentation of anti-corruption and related legislation has long been identified as a factor hampering effective anti-corruption action. The 'logic' of the current legislative framework does not allow for a coherent approach to addressing corruption through systematic, administrative (disciplinary), criminal and civil means. Whether anti-corruption legislation is located in one law or many laws is not the crucial question, but whether all elements and remedies support each other is.

In the present legislative regime the Act (Corruption Act, 1992) is one of a package of laws that addresses corruption. A piece-meal amendment to one of the laws in the package will serve little purpose in making anti-corruption action more efficient.

In principle, the criminalisation of misuse of public office (as suggested in the Bill of Ms Taljaard) is supported. However, two aspects need to be considered. Fundamentally, the DPSA cannot support a view that purports corruption to be an offence that can be committed by a holder of public office only. This is in fact widely recognised internationally, regionally and domestically as can be seen from the National Anti-Corruption Forum process and fundamental principles. A review of legislation needs to criminalise corruption by those outside of the Public Sector. Secondly and more practically, the question of criminalisation cannot be considered in isolation of the administrative, prosecuting and judicial processes criminalisation would lead to, coupled with its financial and administrative burdens. For example, would an administrative process not address the case of someone taking a R5 bribe more efficiently?

It is the DPSA's view that the proposed amendment to the Act -
* is premature in view of the absence of a thorough review of the legislative framework;
* does not recognise the complexity and deficiencies of the legislative framework; and
* fails to recognise corruption as a societal problem that must be addressed as such.".

3. INVOLVEMENT AND VIEWS OF THE DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT, INCLUDING THE PROSECUTING AUTHORITY:
3.1 In March 2000, Adv Johnny de Lange, MP, Chairperson of the Portfolio Committee on Justice and Constitutional Development, requested the Office of the National Director of Public Prosecutions to comment and make recommendations on the Corruption Amendment Bill of Ms Taljaard, MP. A document submitted by the National Director of Public Prosecutions to members of the Portfolio Committee in response to Adv De Lange's request, is attached for the information of Committee members. (Annexure "C") Suffice it to point out a few salient areas in this submission which deserve highlighting.

3.2 The Corruption Amendment Bill of Ms Taljaard, MP, was forwarded to all Directors of Public Prosecutions for their comments. Two Directors do not support the Bill at all, based on the argument that the Bill does not go much further than the existing Corruption Act, 1992, which is adequate as far as the aspect under discussion is concerned. Two Directors support the Bill without any reservation. Two Directors support the principle contained in the Bill but argue that numerous aspects of the amendment will require tightening up. One Director of Public Prosecutions is of the view that the present Corruption Act, 1992, is totally inadequate. He suggests that the common law crime of bribery should be revived and that certain aspects to cover all corrupt acts by public and private officials should be addressed. From this it is clear that there is no consensus on what is required in terms of legislation at this stage. These aspects need further attention and the exact nature of legislative changes will most probably become more apparent during the processes which are spelt out above in paragraph 2.

3.3 In paragraph 1.4 of Annexure "C" the National Director of Public Prosecutions (the NDPP) recommends that the Standing Committee on Private Members' Legislative Proposals and Special Petitions does not proceed with the proposed Bill but rather consider the proposals as set out in paragraphs 2, 3 and 4 of his document.

3.4 Paragraph 2 of his document deals with the development of an overall anti-corruption strategy and proposals in respect of a new Act dealing with the prevention of corruption. The NDPP argues that it is important to study current international initiatives against corruption, mention of which is made in his document. The NDPP points out "that South Africa lacks an overall anti-corruption strategy and the South African Legislation relating to corruption and bribery, although only enacted in 1992, is far behind the legislation of the major international countries.". He goes on to argue "that a holistic approach should be adopted in this regard and that an overall anti-corruption strategy be developed and that the possible enactment of a new Prevention of Corruption Act should be considered urgently.". In paragraph 2.5 of Annexure"C" the NDPP states that, in considering the enactment of a new Act, "it is important to consider the proposals contained in the Global Programme Against Corruption" of the UN referred to above.

3.5 Paragraph 3 of Annexure "C" sets out various options which could be considered on how to take the matter forward and paragraph 4 makes recommendations relating to the contents of a new Prevention of Corruption Act. In essence, the approach of the National Prosecuting Authority, with which we agree and which is similar to the view of the DPSA, is that it is premature to proceed with the Bill of Ms Taljaard.

3.6 The Department of Justice and Constitutional Development would also like to point out that, since the National Anti-Corruption Summit in April 1999, it has been involved in the promotion of the following legislation which has a bearing on corruption, either directly or indirectly, some of which also gives effect to the resolutions of the April 1999 National Anti-Corruption Summit:

3.6.1 National Prosecuting Authority Amendment Act, 2000
3.6.1.1 The principal Act provides for the establishment of a single national prosecuting authority as contemplated in the Constitution, which is responsible for instituting criminal proceedings on behalf of the State and for carrying out any necessary functions incidental to instituting criminal proceedings. The prosecuting authority consists of the Office of the National Director of Public Prosecutions and offices of the prosecuting authority at the various High Courts in the Republic. The Office of the National Director consists of the National Director of Public Prosecutions, Deputy National Directors, Investigating Directors and Special Directors, other members of the prosecuting authority appointed to this Office and administrative staff. In terms of section 7 of this Act the President of the Republic may, by proclamation in the Gazette, establish Investigating Directorates in the Office of the National Director, in respect of specific offences. The following Investigating Directorates have been established:
(i) Investigating Directorate: Organised Crime and Public Safety
The offences which fall within the jurisdiction of this Investigating Directorate include fraud, theft and any offence involving dishonesty, extortion and any offence in contravention of the Customs and Excise Act, 1964, the Intimidation Act, 1982, the Corruption Act, 1992 and the Drugs and Drug Trafficking Act, 1992.
(ii) Investigating Directorate: Corruption
This Investigating Directorate was established to deal with offences relating to corruption.
Chapter 5 of this Act sets out the powers, duties and functions relating to Investigating Directorates, that is sections 26 to 31.

3.6.1.2 This Act was amended comprehensively in 2000 by way of the National Prosecuting Authority Amendment Act, 2000 (Act 61 of 2000). The Amendment Act makes provision for the establishment of the Directorate of Special Operations (Scorpions) and for the existing Investigating Directorates to become part of the Directorate of Special Operations. The main objects of this Directorate are to -
* gather intelligence regarding, and to investigate offences which are identified in terms of the proposed legislation as being of an especially serious nature;
* ensure that the preparation for the prosecution and the prosecution itself, in respect of these offences, are carried out in the best possible manner.

3.6.1.3 This Amendment Act emanates from the President's Opening Address in Parliament on 25 June 1999, when he announced that a special and adequately staffed and equipped investigation unit will be established urgently to deal with all national priority crimes, including police corruption.

3.6.2 Promotion of Access to Information Act, 2000 (Act 2 of 2000)
3.6.2.1 This Act, previously known as the Open Democracy Bill, gives effect to the right enshrined in section 32 of the Constitution, namely the right of access to information. In terms hereof everyone has the right of access to any information held by the State and to information held by another person when that information is required for the exercise or protection of any fundamental rights. The Act, while confirming this constitutional right, sets out how and the circumstances in which, this right can be given effect and it provides mechanisms through which persons can enforce their rights in this regard in specially created structures and the courts of law. This legislation is intended to facilitate the demise of a secretive and unresponsive culture in both the public and private sectors which often led to an abuse of power and human rights violations and corruption. It will also foster a culture of transparency and accountability in public and private bodies and actively promote a society in which its members have effective access to information to enable them to exercise and protect their rights fully.

3.6.2.2 This Act, with the exception of sections 10, 14, 16 and 51, came into effect on 9 March 2001.

3.6.3 Protected Disclosures Act, 2000 (Act 26 of 2000)
3.6.3.1 The Act is derived from Part 5 (whistleblower protection) of the Open Democracy Bill [B67 — 98], which Part was omitted from that Bill to be dealt with as a separate Bill. The Open Democracy Bill has now been enacted into law and is known as the Promotion of Access to Information Act, 2000. The principal objects of the Act are to make provision for procedures in terms of which employees in both the private and the public sector may disclose information regarding unlawful or irregular conduct by their employers or other employees in the employ of their employers. It also provides for the protection of employees who make disclosures which are protected in terms of the Act.

3.6.3.2 The Act came into operation on 16 February 2001. Although the Act is in operation, the guidelines contemplated in the Act, which explain the provisions of the Act and all the procedures which are available in terms of any law to employees who wish to report or otherwise remedy an impropriety, have not yet been finalised. These guidelines, must, in terms of the Act, be approved by Parliament. Draft guidelines have been prepared and comments have been requested from role-players. Obtaining information on all procedures which are available in terms of any law to employees is a task which will take some time and which will require the co-operation and inputs of all role-players, particularly all State Departments.

3.7 It should also be mentioned that this Department envisages the enactment of the following legislation as soon as circumstances permit:

3.7.1 Interception and Monitoring Prohibition Amendment Bill
3.7.1.1 This Bill is intended to bring the legislation dealing with the interception and monitoring of communications which has a bearing on serious crimes, including corruption, into line with the latest telecommunications technology. The Bill will extend the ambit of the existing legislation, particularly in respect of cellular networks and will strengthen the powers of law enforcement agencies in the combatting of serious crimes.

3.7.1.2 It is hoped that the Bill will be introduced into Parliament by the end of May 2001 and be finalised shortly thereafter.

3.7.2 Corruption Amendment Bill/Prevention of Corruption Bill
3.7.2.1 The Department intends revisiting the provisions of the Corruption Act, 1992 (Act 94 of 1992), with the view to addressing identified shortcomings. Comments have been invited from role-players regarding the application of the Act in practice. Some of the comments received include the following:
* The Act is difficult to deal with and is not user-friendly. The repealed crime of bribery was much easier to understand.
* The Act is aimed at two persons, the payer and the receiver of the money. It does not cover the "go-between".
* The Act does not punish the giver or receiver of the benefit if the giving, receiving or offering to give or receive, took place after the act or omission for which the benefit was given or offered, unless the State can prove beyond reasonable doubt that the act or omission was itself in breach of duty. The common law crime of bribery as well as the repealed Prevention of Corruption Act, 1958, punished an ex post facto gift, even if there had been no antecedent breach of duty.
* The Act requires the gift to be in exchange for the doing, or omission to do, some act in relation to a power or duty. The common law crime of bribery was much wider, covering any act or omission in an official capacity.
* The common law crime of bribery should be re-instated, which should be extended to cover corruption in the private sector.

3.7.2.2 The Department intends working closely with the Office of the National Director of Public Prosecutions, which has reached an advanced stage in preparing a new Prevention of Corruption Act.

3.7.3 Lastly, it should be pointed out that the South African Law Commission has on its programme two investigations which might have a bearing on corruption, namely the admissibility of computer-generated evidence and computer-related crimes. These will most probably be finalised during 2002.

Appendix 4
PRIVATE MEMBER'S Bill: FUND FOR THE VICTIMS OF CRIME BILL
1. In the proposed Private Member's Bill on a Fund for Victims of Crime it is proposed that a Fund for the Victims of Violent Crime be established and that a Board of Trustees be created to manage and control the Fund. The Bill also provides limited details of the management of the Fund, and the procedure relating to grants from the Fund, the form in which the applications for compensation shall be made, the manner in which the accounts of the Fund should be kept and other matters necessary for the control of the Fund is to be prescribed by regulation.

2. The Law Commission's subcommittee on victim empowerment is at present engaged in an investigation into the establishment of a compensation fund for victims of crime. In this regard the Commission has already published an issue paper on restorative justice in 1997 which included proposals on the establishment and management of such a compensation fund. From the comments received on the Commission's proposals it was clear that the financial viability of such a fund was the most important issue which had to be considered in the course of the investigation.

3. The subcommittee intends to make recommendations with regard to compensation and restitution for victims of crime which will ensure a fair, efficient and viable system and which will meet the needs of victims, provide them with access to the criminal justice system, ensure greater satisfaction with the criminal justice system and which will ensure that minimum financial compensation shall be provided for those victims. In order to best meet these objectives consideration is at present being given to establishing a financially viable state compensation fund with alternative options regarding financial viability. If such a fund proves not to be a viable option, the committee is considering alternative solutions (for example establishing a fund which would not pay compensation but which will be used for improving support services to victims) and alternative ways to broaden the number of people eligible for compensation having regard to the financial constraints under which the system is to operate.

4. Research into the viability of establishing a compensation fund was undertaken by the
Centre for the Study of Violence and Reconciliation and a discussion paper was
approved for publication by the Commission's Working Committee on 31 March 2001.

5. The discussion paper considers the feasibility of establishing a Victim Compensation Scheme (VCS) in South Africa. It begins by providing an overview of the nature and extent of violent crime in the country. This is considered critical to understanding the foundation for such a compensation scheme and for realistically costing such an endeavour. The discussion paper also briefly documents the economic, physical and psychological impacts of violent crime on its victims and discusses the services currently available to them.

7. Debates concerning compensation are raised and an analysis of the motivations for and against the establishment of a VCS are provided. Strong arguments from a victim-centred and moral perspective are made for establishing a VCS. Some potential benefits for the criminal justice system as a whole are also described. Arguments against establishing a VCS are then outlined. These mainly focus on whether providing compensation, in a context of limited resources, should be prioritised over and above other aspects of victim support. The debates conclude that compensation, either partial or full, should be seen as a complementary component of victim support, which is vital to ensuring the efficacy of the whole criminal justice system. This makes prioritisation difficult.

8. An overview of the South African law of damages and existing schemes that offer compensation (i.e. compensation to victims of road accidents, occupational injuries and diseases, and political traumas) are then provided. The international experience in compensating victims of crime specifically is also considered and the recovery of compensation from the offender is discussed.

9. The eligibility criteria for compensation from the State, based on comparative international data, are then elucidated. Specific parameters applied to foreign compensation schemes, which may be appropriate for inclusion in a South African scheme, are highlighted, including the mandate of these schemes, the type of crimes eligible for compensation, as well as who may qualify to apply to the scheme for compensation. This analysis of the parameters of different compensation schemes is considered the skeleton upon which any legislative framework for a South African compensation scheme would be based.

1 0. The findings of an analysis of selected police dockets are then reported. This is done in order to verify information about certain types of violent crimes and their impact on victims. This information is used to make assumptions when costing a VCS later in the discussion paper, and for shaping possible policy scenarios. In addition, the docket analysis focuses on the usefulness of police information in adjudicating possible claims for victim compensation. It reveals, amongst other findings, that current police recording practices provide inadequate data on which to base an assessment of compensability, such as may be required in a VCS. Of particular concern is the fact that a medical report was not completed in over 80% of the cases studied.

11. The envisaged costs associated with establishing a compensation scheme in South Africa are then discussed on the basis of certain assumptions. The variables that would determine the overall cost of the scheme are pointed out, with the estimated financial impact of various policy permutations and applied eligibility parameters considered. The discussion paper also considers the estimated administrative costs that would be incurred in running a compensation scheme. These, and the cost of different models, vary a great deal (i.e. from incredibly costly to potentially viable in the South African context) depending on the policy parameters used.

1 2. The discussion paper highlights possible sources of funding to finance the
establishment of a VCS. Attention is given to the potential of state funding, voluntary sources and the imposition of dedicated taxes. Obstacles that may be encountered in attempting to secure such funding are considered, as are alternative expenditure choices, including the provision of limited and targeted assistance to crime victims in !ieu of extensive compensatory support.

13. The mechanics of administering a victim compensation scheme are briefly delineated and some of the administrative processes that would need to be in place if such a scheme was established in South Africa are examined. In particular, steps are detailed which aim to minimise the risks, while maximising the benefits to victims.

1 4. The discussion paper concludes by recommending that a fully-fledged compensation scheme is not possible in the short-term and details the pro-conditions (e.g. reliable police record keeping sufficient funds etc.) that would need to exist for such a scheme to be established in South Africa. It is, however, recommended that pilot targeted compensatory assistance be established for certain categories of victims of crime, i.e. disabled crime victims, rape survivors and the dependents of murder victims. In addition, it is recommended that a Victims of Crime Fund be set up and that dedicated taxes on firearm ownership and ammunition purchase, as well as alcohol, be considered as mechanisms for funding pilot targeted compensatory schemes.

15. Recommendations are also made concerning issues such as witness fees, restitution from offenders, the role of the victim empowerment programme and the Charter of Victims Rights. Finally, it is recommended that the development of a compensation scheme not be dismissed out of hand simply because a full-scale scheme is not feasible in the short-term. It is recommended that the feasibility of the scheme itself should be periodically assessed against a number of suggested criteria and that a VCS in South Africa should be developed incrementally.

1 6. It is submitted that the introduction of the Private Member's Bill is premature and that it includes provisions which will have major financial implications without having been subjected to thorough research. In the memorandum on the financial implications it is for example stated that the financial implications would not be excessive and that the estimated cost for establishing the fund should not exceed R 500 000. It is submitted that this is an over-simplification of the facts which does not correspond with the Commission's research.

1 7. There exists no pre-existing legal right to compensation from the State for the financial and material effects of a violent or property crime committed by one (natural) person against another. For that reason, a victim compensation scheme (VCS) may be established on the basis of pragmatic policy choices. A VCS, therefore, like many other spending programmes, would be developed on the basis of policy choices founded on political priorities and fiscal constraints. Discussion concerning the desirability of establishing a VCS in South Africa must, therefore, be premised on a reasonably realistic appreciation of the potential costs of such a scheme.

1 8 The discussion paper sought to cost the financial implications of the establishment of a VCS in South Africa on the basis of a variety of policy permutations. In general, the necessary data have not been available, and, as a consequence, the researchers have had to rely on assumptions about key variables. They have based their assumptions on relevant data that are available and on the knowledge we have gained in working on issues of crime and violence over the past few years. However, being assumptions, they are made in the full knowledge that they are subject to possible distortions. Therefore, they have tried to make reasonably conservative assumptions about the relevant variables. This means that, to the extent that the costing of this VCS is erroneous, it would tend to understate the likely consequences of various policy permutations.

19. For a VCS to begin to meet the needs of victims it would have to meet the criteria listed below.
* The range of crimes covered by the scheme could vary, but would, in ideal
circumstances, cover all forms of violent criminal victimisation.
* Given the impact of violent crime on victims, the average pay outs of the VCS would have to be reasonable.
* The coverage of the VCS would have to be sufficiently widespread so that it would not discriminate against victims purely on the basis of where they lived and possible differential accessibility of VCS offices.
* Its working procedures would have to be sufficiently speedy so that victims do not experience undue hardships attendant on administrative delays in the payment of compensation.

The method used in the discussion paper is to evaluate different constructions of these criteria to assess how they might impact on costs. The discussion paper conclude that a fully fledged compensation scheme for victims of crime could cost as much as R2,3 billion per year.

20. The closing date for comment on the discussion paper is 31 July 2001. It is intended to submit the Commission's report to the Minister by the end of 2001.

SOUTH AFRICAN LAW COMMISSION: DISCUSSION PAPER 97
PROJECT 82
SENTENCING (A COMPENSATION SCHEME FOR VICTIMS OF CRIME IN SOUTH AFRICA )

Closing date for comments:
31 JULY 2001

INTRODUCTION
The South African Law Commission was established by the South African Law Commission Act, 1973 (Act 19 of 1973).

The members of the Commission are -
The Honourable Madam Justice Y Mokgoro (Chairperson)
The Honourable Mr Justice CT Howie
The Honourable Madam Justice L Mailula
Professor IP Maithufi
Adv J J Gauntlett SC
Ms Z Seedat
Mr P Mojapelo
Professor CE Hoexter

The Secretary is Mr W Henegan. The Commission's offices are on the 12th floor, Sanlam Centre C/o Andries and Pretorius Street, Pretoria. Correspondence should be addressed to:
The Secretary
South African Law Commission
Private Bag X 668
PRETORIA
0001

Telephone : (012) 322-6440
Telefax : (012) 320-0936
E-mail : [email protected]
Internet site : http://www.law.wits.ac.za/salc/salc.html

A subcommittee (Victim Focus Group) of the project committee on sentencing was responsible for this project. The project leader of the subcommittee responsible for this project is Mr V Petersen. The members of the subcommittee are -

Ms L Camerer
Mr JD Kollapen
Professor RT Nhlapo (Commissioner)
Ms ME Ramagoshi
Professor D Van Zyl Smit
Dr HF Snyman (co-opted by the subcommittee)

PREFACE
This discussion paper (which reflects information gathered up to the end of February 2001) was prepared by the Centre for the Study of Violence and Reconciliation on behalf of the subcommittee of the project committee on sentencing (Victim Focus Group) to elicit responses and to serve as a basis for the Commission's deliberations, taking into account any responses received. The views, conclusions and recommendations in this paper are accordingly not to be regarded as the Commission's final views. The discussion paper is published in full so as to provide persons and bodies wishing to comment or to make suggestions for the reform of this particular branch of the law with sufficient background information to enable them to place focussed submissions before the Commission.

Respondents are requested to submit written comments, representations or requests to the Commission by 31 July 2001 at the address appearing on the previous page. The researcher will endeavour to assist you with particular difficulties you may have. Comment already forwarded to the Commission should not be repeated; in such event respondents should merely indicate that they abide by their previous comment, if this is the position. The researcher allocated to this project, who may be contacted for further information, is Mr W van Vuuren.

The Commission will assume that respondents agree to the Commission quoting from or referring to comments and attributing comments to respondents, unless representations are marked confidential. Respondents should be aware that the Commission may in any event be required to release information contained in representations under the Constitution of the Republic of South Africa, Act 108 of 1996.

The Commission would like to express its appreciation to the Legislative Drafting Project of the GTZ (Deutsche Gesellschaft für Technische Zusammenarbeit) and its project manager, Mr R Pfaff, for the technical and financial assistance. With the assistance of the GTZ, the research was conducted by the Centre for the Study of Violence and Reconciliation. The research was commissioned to assist the Commission in acquiring data and other information on the feasibility of establishing a compensation fund for victims of crime in South Africa.