Administrative Review Rules, Directives under Section 4 & 7 of Criminal Matters Amendment Act, Designation of Ireland in Terms o
NCOP Security and Justice
13 November 2001
Meeting Summary
A summary of this committee meeting is not yet available.
Meeting report
SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
13 November 2001
ADMINISTRATIVE REVIEW RULES, DIRECTIVES UNDER SECTION 4 & 7 OF CRIMINAL MATTERS AMENDMENT ACT, DESIGNATION OF IRELAND IN TERMS OF EXTRADITION ACT, EMPLOYMENT BENEFITS OF TRC STAFF
Chairperson: Chief Mokoena (ANC)
Documents handed out
Promotion of Administrative Justice Act: Administrative Review Rules (see Appendix 1)
Memo on Designation of Ireland in terms of section 2(1)(b) of the Extradition Act, 1962 (Act 67 of 1962) (Appendix 4)
Directives in terms of section 4 of Criminal Procedure Amendment Act, 1997 (Appendix 2)
Directives in terms of section 7 of Criminal Matters Amendment Act, 1998 (Appendix 3)
SUMMARY
The Committee considered the Administrative Review Rules, Designation of Ireland in terms of Extradition Act, the extension document relating to employment benefits of TRC Staff and Directives in terms of Sections 4 and 7 of the Criminal Matters Amendment Act
MINUTES
Promotion of Administrative Justice Act, 2000: Administrative Review Rules
Prof. Cheryl Loots remarked that in terms of section 7 of the Promotion of Administrative Justice Act the Rules Board has the responsibility to make Rules for the procedure for administrative review applications before the courts. Such applications are made to review administrative action that has been taken and which is reviewable in terms of the Act. Rule 53 of the Uniform Rules of the High Court prescribes the manner in which applications for the review of administrative decisions are to be brought or made. There is case law to the effect that an Applicant is not obliged to use Rule 53, and that an Applicant can bring such application in terms of the general rules for the application which is Rule 6 of the Uniform Rules of the High Court.
Courts have held that Rule 53 gives the Applicant some advantages, particularly the advantage of being able to require the Respondent (or the person who made the administrative action) to furnish the record both to the Registrar of the High Court and to the Applicant and any affected parties. Rule 53 also sets out the procedure on how to obtain that record on which the decision was made.
Quite frequently when the Applicant is in possession of the record in practice he usually proceeds by way of a normal procedure because it is quicker. The Rules Board has thus introduced quite a number of amendments that bring Rule 53 to a certain extent, in line with the provisions of Rule 6 of the Uniform Rules of the High Court. A new clause was also inserted to the effect that in those review matters instituted in the Magistrate Courts, Rule 6 of the Uniform Rules of the High Court would apply to govern the proceedings. The reason for this that the applications procedure in the Magistrate Courts is not as developed as that which applies in the High courts. The Rules Board is involved in a Harmonization Project where attempts are being made to bring the Rules of the High Court and the Magistrate Courts in line with one another so that there may be a single set of rules for civil practice. Although this Project still has some way to be finalized, it was a good idea to make the High Court procedure applicable in the Magistrates Courts for this type of application. The recent changes in this area of the law would enable the applications for judicial review of administrative actions to be heard in the Magistrates Court. The Act does make provision for the Minister of Justice to designate certain magistrates in consultation with the Magistrates Commission to hear this type of application and to designate certain types of applications which can be heard in the Magistrate Courts. It is thought that it will be easier for the magistrates to consider the body of judicial precedent decided in the higher courts to apply it in reaching their decisions.
Some magistrates have been trained at the Justice College not only on the substantive law but also on the procedure as drafted.
1. Definitions
The Rule begins with a definitions section. Where a word has had a meaning assigned to it in the Act it shall bear the same meaning in the Rules. The courts that shall have jurisdiction are the Magistrates courts, High Courts and Constitutional court. The definition of the record is such record as relating to the administrative decision. It has been made broad to include everything that one could imagine in every document that would be relevant to the proceedings. Care has been taken not to oblige decision makers in terms of this Rule to give reasons for their administrative action because this is something that must be done in terms of the substantive law. It was not necessary to make a Rule that purports to introduce changes to the substantive law.
2. Judicial Review
This introduces the actual proceeding. Proceedings in a court for the judicial review of an administrative action shall be initiated by the delivery of a Notice of Motion, corresponding substantially with Form 1 in the Annexure.
Subclause (2) prescribes the details to be included in the Notice of Motion.
Subclause (3) provides that the Notice of Motion must call upon the administrator to file with the clerk of the court a certified copy of the record together with an affidavit corresponding with Form 2. It provides that the Applicant and any other person affected be notified that this has been done and be provided a certified copy of the record and an affidavit.
Under subclause (b) the Rules Board took account of the possibility that an administrator may not be able to comply with this requirement for various reasons. If that is so he must notify the clerk, the applicant and any other person affected and state in an affidavit the reasons for the inability and when such provision will be complied with. This requires a commitment from the administrator to state the time at which the record would be made available.
Subclause (4) provides that having received the record, the applicant may within ten days amend, add to or vary the Notice of Motion and supplement the supporting affidavit.
Subclause (5) provides that the Notice of Motion must further call upon the administrator or any other person affected by who desires to oppose the granting of the remedy to (a) deliver a Notice that he intends to oppose the application and appoint an address within eight kilometers of the court for the service of application papers. The administrator must also deliver any affidavits he may desire in answer to the application. He may also deliver a Notice of intention to raise a question of law only. This is in line with the High Court procedure where a matter can be dispensed with purely on a question of law.
Paragraph 6 is a new innovation that is not found in High Court Rule 53. It was inserted after a question was asked on what is the sanction if the administrator fails to furnish the record or how is the administrator forced to furnish the record. A procedure was then designed to compel compliance with the provisions of the Rule. Care was also taken not to create an offence in terms of these rules because rules cannot introduce a matter of substantive law such as contempt of court. The application to compel delivery of the record would be in a nature of an interlocutory application, i.e. an application that is incidental to the proceedings that are already pending before a court. There is an alternative, i.e. the Applicant can make an application to compel or alternatively make an application setting the matter down for a hearing without the documents (record) being furnished. The fact that the administrator is not able to furnish the record does not prevent the court from dealing with the matter.
Subrule (7) provides some kind of a safety net.
Subrule (8) sets out the amount of revenue stamps to be paid for the issue of court process in the three courts.
3. Commencement
These Rules shall come into operation on 30 November 2001.
Discussion
Mr Thabe (ANC) asked a question of clarity on the term 'administrator', whether it was a deliberate omission on the part of the Rules Board not to state its meaning in this Rule.
Prof. Loots replied that this word is defined in the principal Act. An administrator means an organ of state or any natural or juristic person taking an administrative action.
Mr Setona (ANC) remarked that Subrule 2(6) imposes a lot more burden on the complainant (Applicant) than on the court [that is, if the administrator fails to comply with any of the provisions of rule 2(3)(a) and has failed to give notice and furnish the affidavit referred to in rule 2(3)(b), the applicant may at any time after the expiry of the 15 day period referred to in rule 2(3), apply for an order compelling such compliance or apply to the clerk to allocate a date for the hearing of the judicial review]. He commented that the applicant is the person that is actually affected by an administrative decision. What are the powers of the court in relation to this matter?
Prof. Loots agreed that this places an additional burden on the applicant because it involves an interlocutory application. An interlocutory application is another procedure which is costly. It does have that disadvantage. This is the reason that prompted the Rules Board to look at whether to include a clause to the effect that a failure to furnish the record would amount to a contempt of court. However, having regard to the implications, it was resolved that this offence cannot be included in this Rule because it would be introducing a matter of substantive law into the Rules and Rules are only designed to deal with procedural matters.
The Chairperson remarked that the adoption of the Rules would have to be deferred until the following day as it had not been finailised in the National Assembly.
Designation of Ireland in terms of Extradition Act
Mr Allers (Department of Justice) remarked that the President may, on such conditions as he see fit, designate any foreign state, in this case, Ireland, for the purposes of extradition. The President designated Ireland in April of this year in terms of the Extradition Act. The object of this designation is to enable the government of Ireland upon application by South Africa to extradite a certain person who is sought to stand trial in South Africa on serious offences of fraud and theft.
Historical Background
The Director of Public Prosecutions for the Witwatersrand wishes to apply for the extradition of a certain person who allegedly committed serious offences of fraud and theft within this jurisdiction. The suspect absconded shortly after the offences were discovered. It was later discovered that he had applied for (and was granted) an Irish passport about two months before he absconded.
Before the designation can be of any force or effect, Parliament must agree to such designation. When Parliament has agreed, the Minister must make a notification thereof in the Government Gazette. The proposed designation was discussed at the meeting of the Extradition Committee which approved the designation.
The Department recommended that the Committee approves this designation.
Discussion
The Chairperson noted that this was a straightforward matter and asked if there were any further questions on the matter. The Committee agreed that the person be extradited from Ireland to face charges. The Committee would vote on this matter on the following day.
Employment benefits of TRC Staff
Mr Allers remarked that it was the fifth time that an extension document has been brought before the Committee for approval by Parliament. in terms of section 9 of the TRC Act the persons that are employed or appointed in terms of the TRC Act and who are not officials of the state shall receive remuneration, allowances and employment benefits and shall be employed for such period as the Commission with the approval of the Minister, in concurrence with the Minister of Finance may determine.
He referred to the document setting out Section 2(1)(a) which provides that a document setting out the remuneration, allowances and other conditions of employment determined by the Commission in terms of such section 1 shall be payable in Parliament within 14 days after each such determination. Section 2(b) provides that if Parliament disapproves of any determination, such determination shall cease to be of force.
Discussion
The Chairperson asked what was the closing date for the TRC.
Mr Allers replied that the TRC must be closed before the end of December and that they were actually closing at the moment. This is an extended time period until the end of March 2002 merely to finalize the final report. Administrative commissioners will attend to this task.
The Chairperson said that he was satisfied with the report.
Directives in terms of Sections 4 and 7 of the Criminal Matters Amendment Act
Mr Allers remarked that these directives are only interim measures. The principal Act provides that these are meant for an interim time period until the Legal Aid Board provides Parliament with a legal aid guide. This is with the Minister at the moment and will be provided to members in due time. These directives have also been included in the Legal Aid Guide.
Directives in terms of section 4(2)(b) of the Criminal Procedure Amendment Act are meant to deal with legal aid issues relating to appeals against decisions of the lower courts and legal representation in respect of these appeals. The Constitutional Court has held that the provisions of sections 309B and 309C of the Criminal Procedure Act, 1977 are unconstitutional, see S v Steyn 2001 (1) BCLR 52 (CC).
Directives in terms of section 7 of the Criminal Matters Amendment Act are meant to deal with legal aid relating to the referral of an accused for enquiry into his capacity to understand proceedings or regarding the criminal responsibility of the accused. These directives have also been included in the legal aid guide. This was an interim measure to enable the Legal Aid Board to give legal aid in specific cases for appeal, and in cases of people who are not able to understand the proceedings of the court.
Discussion
The Chairperson remarked that "the lunatics" who forced themselves on a 9 month old child have demanded legal representation from the state and the state has indicated willingness to provide such aid.
Mr Allers replied that the law provides that the State must provide such legal representation at its expense as required by the Constitution.
Mr Setona remarked that the Constitution may have a need to be amended. Other countries have tough punitive laws, such as the cutting off of the hands of criminals and castration of sexual offenders.
The Chairperson agreed and remarked that most of the people were emotional at the drafting of the Constitution in 1994 and that the law needs to be changed. He referred to prison inmates as "bastards" who are afforded all the privileges while in incarceration.
The meeting was adjourned.
Appendix 1:
GOVERNMENT NOTICE
DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
PROMOTION OF ADMINISTRATIVE JUSTICE ACT, 2000
ADMINISTRATIVE REVIEW RULES
The Rules Board for Courts of Law has under section 7 of the Promotion of Administrative Justice Act, 2000 (Act No.3 of 2000), made the rules in the Schedule.
SCHEDULE
Definitions
1. In these rules a word to which a meaning has been assigned in the Act shall bear the meaning so assigned, a word to which a meaning has been assigned in the rules governing the procedures of the court to which an application in terms of these rules is brought, shall bear the meaning so assigned, and unless the context otherwise indicates -
"applicant" means a person seeking judicial review of an administrative action under section 6 Of the Act;
clerk' means a clerk and assistant clerk of the court appointed under section 13 of the Magistrates' Courts Act. 1944 (Act No.32 of 1 944), a registrar and assistant registrar appointed under section 14 of the Constitutional Court Complementary Act. 1995 (Act No.13 of 1995) and section 34 of the Supreme Court Act, 1959 (Act No.59 of 1959), or a registrar appointed under any law not yet repealed by a competent authority and, immediately before the commencement of the Constitution, in force in any area which forms part of the national territory; ''deliver" means to serve copies on the parties and any other person affected and file the original with the clerk, and "delivery" has a corresponding meaning; "the Act" means the Promotion of Administrative Justice Act, 2000 (Act No.3 of 2000);
"the documents" means the documents referred to in rule 2(1)(b)(i) of these rules.
Judicial review
2. (1) Proceedings in a court for the judicial review of an administrative action shall be initiated by the delivery of a notice of motion, corresponding substantially with the form in the Annexure -
(a) calling upon the administrator to show cause why the administrative action should not be reviewed and the remedy claimed in the notice of motion granted; and
(b) calling upon the administrator -
(i) to despatch within 15 days after receipt of the notice of motion to the clerk two certified copies of the record of proceedings and documents relevant to the administrative action, including all documents before the decision maker when the decision was made, and the reasons for the administrative action in the event of reasons not yet provided; and
(ii) to, immediately after despatch, notify the applicant and any other person affected that he or she has done so and simultaneously despatch to the applicant and any other person affected a certified copy of the record, the documents and the reasons referred to in paragraph (b)(i).
2) The notice of motion shall also -
(a) set out an address within the distance prescribed in the rules
governing the application procedures in the court to which an application in terms of these rules is brought, where the applicant will accept notice and service of all process in these proceedings;
(b) set out the administrative action sought to be reviewed;
(c) indicate whether all internal remedies have been exhausted or whether application is made for exemption in terms of section 7(2)(c) of the Act; and
(d) be supported by an affidavit -
(i) providing particulars of the manner in which and date upon which the internal remedies have been exhausted or if not, setting out the facts and circumstances upon which the application for exemption is brought; and
(ii) setting out the grounds of review contemplated in section 6 of the Act, and the facts and circumstances upon which the review is sought.
(3) The costs of transcription, if any, and of the copies of the documents shall be costs in the cause.
(4) The applicant may within 10 days after the administrator has made the record of proceedings, the documents and the reasons available, by delivery of a notice and accompanying affidavit, amend, add to or vary the notice of motion and supplement the supporting affidavit.
(5) The administrator or any other person affected by the administrative action shall, if desiring to oppose the granting of the remedy claimed in the notice of motion -
(a) within 15 days after receipt of the notice of the moti~~n or any amendment thereof deliver notice that he or she intends to oppose and shall in such notice appoint an address within the distance prescribed in the rules governing the application procedures in the court to which an application in terms of these rules is brought at which he or she will accept notice; and
(b) within 30 days after the expiry of the time referred to in subrule (4). deliver
any affidavits he or she may desire in answer to the application.
(6) Save as otherwise provided in this rule, the provisions of the rules governing the application procedures in the court to which an application in terms of these rules is brought shall apply with the necessary changes to applications in terms of these rules:
Provided that in respect of a Magistrate's Court the provisions of rule 6 of the High Court Rules relating to the set down of applications and urgent applications shall apply with the necessary changes.
(7) Any document by which proceedings are instituted in terms of these rules shall be subject to the payment of the following court fees in the form of a revenue stamp:
(a) If proceedings are instituted in the Magistrate's Court: R 20, 00.
(b) If proceedings are instituted in the High Court: R 80, 00.
(c) If proceedings are instituted in the Constitutional Court: R 75,00.
Commencement
3. These rules shall come into operation on 30 November 2001.
Appendix 2:
Report of the Select Committee on Security and Constitutional Affairs on Directives in terms of section 4 of the Criminal Procedure Amendment Act, 1997, dated 19 September 2001:
The Select Committee on Security and Constitutional Affairs, having considered Directives in terms of section 4(1) of the Criminal Procedure Amendment Act, 1997 (Act No. 76 of 1997), in terms of which legal aid or legal representation is rendered or made available for purposes of section 3 of the said Act, tabled on 16 February 2001 in terms of section 4(2)(b) of the Act, referred to it, reports that it cannot support the said Directives in view thereof that the Constitutional Court in S V Steyn 2001(1) BCLR 52 (CC) held that the provisions of sections 309 B and 309 C of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) are unconstitutional.
Directives in terms of Section 4 of the Criminal Procedure Amendment Act, 1997 (Act No.76 of 1997)
1. Definitions
Act means the Legal Aid Act, 1969 (Act 22 of 1969) as amended.
Board means the Legal Aid Board established in terms of the Act.
Constitution means the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).
Director means the Chief Executive Officer of the Board or any person delegated by him, in writing.
Guide means the 1996 Legal Aid Guide, issued by the Board pursuant to its powers in terms of section 3(d) of the Act, as amended by Circulars issued by the Director from time to time.
Legal Aid Officer means a legal aid officer or assistant legal aid officer in the employ of the Board or any person in the employ of the Department of Justice delegated to carry out the functions of a legal aid officer on an agency basis.
Rotation List means the rotation list compiled from time to time by a legal aid officer acting in terms of the Guide.
2. Substantial Injustice
2.1 The right to an appeal is an integral part of the right to a fair trial and, where substantial injustice would otherwise result, the accused is entitled to legal representation at State expense for the purposes of an appeal. This does not however mean that every accused who is convicted is forthwith entitled to legal aid for purposes of an appeal.
2.2 Substantial injustice will, for present purposes, be assumed to arise in respect of a contemplated appeal in a criminal matter if legal representation is not made available to the accused at State expense in circumstances where:
2.2.1 the accused is unable to afford the cost of his/her own legal representation in respect of the contemplated appeal; and
2.2.2 the accused has been sentenced to direct imprisonment without the option of a fine and
2.2.3 there is a reasonable prospect of success in relation to the contemplated appeal.
2.3 an accused must comply with all three of the criteria set out in paragraph 2.2 above.
2.3 Whether or not the accused is unable to afford the cost of his/her own legal representation in respect of the contemplated appeal is a matter to be determined by legal aid officers as follows:
2.4.1 The legal aid applicant completes the means test as provided in Chapter 2 of the Guide (see Annexure LA. 13B hereto). If the legal aid applicant qualifies for legal aid in terms of the means test the legal aid applicant is indigent and is obviously unable to afford the cost of his/her own legal representation. Consequently, if the legal aid applicant qualifies in terms of the means test, the enquiry in respect of the legal aid applicant's ability to pay for the cost of his/her own legal representation need proceed no further.
2.4.2 If the legal aid applicant does not qualify for legal aid, then Annexure LA. 13C hereto is to be completed and forwarded to the Director who will consider whether or not the legal aid applicant qualifies for the assignment of legal representation at State expense, taking into account the income, expenditure, assets and liabilities of the legal aid applicant, the nature and number of the charges involved, the number of co-accused involved, the forum in which the proceedings are to take place, the anticipated duration of such proceedings and any factors relating to the complexity of the matter which may be drawn to the attention of the Director.
2.5 In relation to criminal appeals, the legal aid officer should ascertain from the accused whether he/she has been sentenced to direct imprisonment without the option of a fine. If in any doubt the legal aid officer may peruse the relevant charge sheet.
2.6 Sections 309B and 309C of the Criminal Procedure Act, 1977, as amended, for the most part relieves the Board of the responsibility of determining whether or not a legal aid applicant in respect of a criminal appeal has a reasonable prospect of success.
2.6.1 A legal aid applicant who has been granted leave to appeal by the court a quo will be deemed to have a reasonable prospect of success in the immediately superior tribunal.
2.6.2 A legal aid applicant who has been granted leave to appeal by the petition process will be deemed to have a reasonable prospect of success before the court which granted the petition.
Any legal aid applicant who has neither obtained leave to appeal nor been granted leave to appeal by
the petition process will be deemed not to have a reasonable prospect of success and not to be entitled to legal representation on State expense in terms of section 35(3)(g) of the Constitution. The Director will however have a discretion to authorise legal aid for a further petition to the Supreme Court of Appeal.
Applications for leave to appeal
3. l The mandate of a legal practitioner instructed on a legal aid basis in respect of the defence of the accused in the court a quo will extend to include the bringing of an application for leave to appeal on a legal aid basis provided such application for leave to appeal is brought within the time periods prescribed by section 309B or section 316 of the Criminal Procedure Act, 1997, as the case may be.
3.2 Where any application for leave to appeal needs to be accompanied by an application for condonation, the legal aid applicant will have to apply for legal aid anew and the Director will have to be satisfied by the legal aid applicant or his legal representative that the contemplated application for condonation has a reasonable prospect of success.
3.3 Legal practitioners have a continuing obligation, in terms of paragraph 5.11 of the Guide to ensure that their legal aid clients continue to qualify for legal aid and to draw any change in the circumstances of the legal aid applicant to the attention of the Director.
3.4 Whenever possible an application for leave to appeal must be brought on the same day sentence is handed down. Where this is not possible, for whatever reasons, a detailed written explanation as to why it was not possible to bring the application for leave to appeal on the same day on which sentence was handed down must accompany the account of the legal practitioner.
4 Petitions, applications to lead further evidence and applications for bail pending appeal
4.1 The legal aid mandate of a legal practitioner who was instructed in respect of the trial in the court a quo will in future extend to the launching of a petition on a legal aid basis provided such petition is delivered within the time periods specified in Sections 309C or 316 of the Criminal Procedure Act, 1977, as the case may be and further provided that 110 legal practitioner shall launch any petition on behalf of any legal aid applicant unless such petition has a reasonable prospect of success. Any judge who refuses a petition and who is of the view that such petition never had a reasonable prospect of success and ought not to have been launched may bring such view to the attention of the Director in writing within 14 days of the refusal of the said petition. In the event of a judge communicating to the Director that a petition launched on a legal aid basis never had a reasonable prospect of success the Board shall be entitled to and will refuse payment to the legal practitioner concerned of any fees or disbursements relating to the petition in question or reasonably incidental thereto.
4.2 Where no petition is brought timeously and where an application for condonation becomes necessary, a fresh application for legal aid by the legal aid applicant will be necessary and it will be necessary for the Director to be satisfied that the contemplated application for condonation has a reasonable prospect of success.
4 3 Where leave to appeal against a judgement or order of the lower court has been refused by the rejection of a petition by the High Court no further petition to the Supreme Court of
Appeal may be launched oil a legal aid basis without the Director first having been satisfied that the contemplated petition to the Supreme Court of Appeal has a reasonable
prospect of success. In such an instance it will be necessary for the legal aid applicant to make a fresh application for legal aid
4.4 An application for the adducement of further evidence is not to be brought on a legal aid basis unless the Director has first been satisfied that the application to lead further evidence has a reasonable prospect of success save in those instances where such application to adduce further evidence is brought simultaneously with the petition at no additional cost to the Board.
4.5 A legal practitioner who is entitled to bring an application for leave to appeal or to launch a petition shall be entitled to apply on behalf of the accused for bail pending the determination of the contemplated appeal provided the accused was not de facto in detention prior to his/her conviction and further provided that no appeal against any refusal of bail pending an appeal may be conducted on a legal aid basis without the Director's consent.
5. Reports to the Director
5.1 Where any application for condonation is necessary, or when an application to lead further evidence is contemplated, or where the court a quo was a Magistrate's Court and a petition to the Chief Justice is contemplated, or 'where an appeal against the refusal of bail pending an appeal is contemplated, it will be necessary for the Director to be satisfied in advance that the contemplated step has a reasonable prospect of success.
5.2 Where it is necessary in respect of a criminal appeal or any ancillary step to satisfy the Director that any such step has a reasonable prospect of success, a written report must be submitted to the Director by the legal practitioner instructed by the Board setting out:
5.2. 1 the full names of all the contemplated appellants;
5 2.2 a proper description of the court a quo, the case number and the date or dates of conviction and sentence;
5.2.3 the charge or charges in respect of which the legal aid applicant contemplates an appeal and the sentence imposed in respect of each such charge;
5.2.4 the nature of any evidence wrongly admitted at the trial and the reasons, with authority, for submitting that such evidence was wrongly admitted;
5.2.5 the nature of any misdirection on any point of law by the presiding judicial officer and the reasons, with authority, for submitting that such misdirection took place;
5.2.6 the nature of any erroneous deductions and/or conclusions reached by the judicial officer and the reasons, where appropriate with authority, for believing that such deductions/conclusions are erroneous;
5.2.7 any appropriate submission, with authority, as to why the sentence or any portion thereof was strikingly inappropriate;
5.2.8 whether it will be necessary for the accused to launch an application for condonation and, if so the precise nature of the condonation required, including the extent of the delay to be condoned and the reasons, supported by authority, for believing that such condonation will be granted;
5.2. 9 if any petition to the Chief Justice is contemplated against a conviction and/or sentence of a Magistrate Court, detailed submissions will be required, with authority, as to why the Judge President or the judges delegated thereto by him/her erred in refusing leave to appeal;
5.2.10 if any application to lead further evidence is contemplated, the precise nature of such evidence must be set out together with a detailed explanation as to why such evidence was not available and was not placed before the court at the time of the trial together with any submissions, with authority, as to why such application is likely to be granted;
5.2. 11 the prospects of success with reasons for such submissions in respect of a contemplated appeal against a refusal of bail pending an appeal;
5.2.12 the costs of the contemplated proceedings in terms of the tariff herein set out and how such costs are computed;
5.3 When an accused, who was not legally represented in the court a quo, applies for legal aid in respect of a contemplated appeal but requires condonation because no application for leave to appeal has been brought timeously or no petition has been brought timeously, the legal aid officer shall determine whether the accused qualifies for legal aid in terms of the directives set out in paragraphs 2.2 to 2.5 above and the legal aid officer shall thereafter issue an instruction to a legal practitioner to read as follows:
1. To consult with the accused in terms of section 35 (2)(c) of the Constitution.
2. To obtain a copy of the record in terms of rule 66(9) of the Magistrate's Court Rules.
3. To report to the Director of the Board on the merits of the contemplated appeal and application for condonation and to obtain his response before proceeding therewith."
5.4 Where an accused who qualifies for legal aid in terms of paragraphs 2.2 to 2.5 above was not represented before the court a quo but applies for legal aid in respect of an appeal within the time limits prescribed for the bringing of an application for leave to appeal, or if leave to appeal has already been refused, within the time limits prescribed for the bringing of a petition, the legal aid officer shall issue a legal aid instruction to a legal practitioner which should read as follows:
"1. To assist the legal aid applicant with an application for leave to appeal and/or a petition against conviction and/or sentence under case number….handed down by the …..Court at ……..on …………..
2. To obtain a copy of the record in terms of rule 66(9) of the Magistrate's Court Rules.
3. To report in due course to the Director of the Board on the outcome of the application for leave to appeal and/or petition.
5.5 In other instances where application for legal aid/a new application for legal aid needs to be made prior to the finalisation of the application for leave to appeal/petition procedure, the legal aid officer should ascertain whether the legal aid applicant qualifies for legal aid as set out in paragraphs 2.2 to 2.5 above and if so satisfied, the legal aid officer shall issue a legal aid instruction in favour of a legal practitioner to read as follows:
1. To consult with the accused in terms of section 35(2) (c) of the Constitution.
2. To obtain a copy of the record in terms of rule 66(9) of the Magistrate's Court Rules.
3. To report to the Director of the Board on the merits of the contemplated application for condonation/application to lead further evidence/petition to the Chief Justice (in respect of an accused convicted and sentenced in a Magistrate's Court),appeal against the refusal of bail pending appeal, on the merits of the contemplated appeal/petition/application and to obtain his response before proceeding therewith."
5.6 Where in any instance a legal practitioner is required to submit a report to the Director of the Board on the merits of the matter, the legal practitioner may, pending the reply by the Director, take all such steps on a legal aid basis as are necessary to prevent:
5.6. 1 the accused having to apply for condonation provided no application for condonation was already necessary at the stage where the merit report was submitted to the Director;
5.6.2 the appeal being struck off the roll provided the report was submitted to the Director at least twelve weeks prior to the date appointed for the hearing of the appeal.
5.7 After any application for leave to appeal and petition is disposed of either favourably or otherwise, the mandate of the legal practitioner instructed on a legal aid basis in respect thereof will ipso facto terminate. The legal aid applicant/accused may thereafter reapply for legal aid in respect of the proceedings before the court which is to hear the appeal. The basis on which the legal aid officer will decide whether or not the legal aid applicant is to receive legal aid in respect of the actual appeal is the same as that set out above but the legal practitioner instructed in respect of such appeal will be a legal practitioner practising within the Magisterial District where the seat of the court which is to hear the appeal is situate and whose name appears on the Rotation List in respect of criminal matters in the High Court. If the legal practitioner who represented the legal aid applicant in the court a quo appears on the relevant Rotation List in respect of criminal matters in the High Court and if such information is drawn to the attention of the legal aid officer, the legal aid officer shall instruct such legal practitioner in respect of the appeal, unless the Director directs otherwise. Save with the leave of the Director, only one legal practitioner shall be instructed on a legal aid basis in respect of a criminal appeal.
6. Fees and disbursements payable to legal practitioners in respect or criminal appeals.
6.1 The fees and disbursements payable to legal practitioners who undertake criminal appeals and/or related matters incidental thereto shall be in accordance with Annexure E.3 hereto.
7. General
7.1 In the event of the Director exercising the discretion vested in him/her in terms of these directives in favour of any legal aid applicant and/or in favour of any legal practitioner details of the matter in respect of which such discretion was exercised, the extent to which any legal aid recipient exceeded the means test, details of any increased or additional fees and/or disbursements authorised and the reasons for the exercise of such discretion shall be recorded in a report submitted by the Director to the Minister of Justice.
7.2 The reports envisaged in paragraph 7. above shall be submitted to the Minister of Justice quarterly with the first report to be submitted on or before 30 September 1999.
7.3 The Minister of Justice shall table the reports received by him in terms of paragraph 7.2 above before Parliament.
Appendix 3:
Report of the Select Committee on Security and Constitutional Affairs on Directives in terms of section 7 of the Criminal Matters Amendment Act, 1998, dated 19 September 2001:
The Select Committee on Security and Constitutional Affairs, having considered Directives in terms of section 7 of the Criminal Matters Amendment Act, 1998 (Act No. 68 of 1 998) in terms of which legal aid or legal representation is rendered or made available for purposes of section 3(a) of the Act, tabled on 16 February 2001 in terms of section 7(2)(b) of the Act referred to it, reports that it does not have any objection to the said Directives.
DIRECTIVES IN TERMS OF SECTION 7 OF THE CRIMINAL MATTERS AMENDMENT ACT, 1998 (ACT NO. 68 OF 1998)
1. Definitions
Act means the Legal Aid Act, 1 969 (Act 22 of 1 969) as amended.
Board means the Legal Aid Board established in terms of the Act.
Criminal Procedure Act means the Criminal Procedure Act, 1 997 and specifically Section 77 thereof as amended by Section 10 of Act 33 of 1986, Section 9 of Act 51 of 1991, Section 42 of Act 129 of 1993 and Section 3 (a) of Act 68 of 1998.
Director means the Chief Executive Officer of the Board or any person delegated by him/her in writing.
Guide means the 1 996 Legal Aid Guide, issued by the Board pursuant to its powers in terms of Section 3 (d) of the Act, as amended by Circulars issued by the Director from time to time.
Legal aid officer means a legal aid officer or assistant legal aid officer in the employ of the Board or any person in the employ of the Department of Justice delegated to carry out the functions of a legal aid officer on a agency basis.
Rotation List means the rotation list compiled from time to time by a legal aid officer
acting in terms of the Guide.
2. Substantial injustice
2.1 Substantial injustice will arise in respect of a person who is the accused at proceedings in terms of Section 77 (1) and/or 78 (2) of the Criminal Procedure Act if legal representation is not made available to the accused at state expense in circumstances where the accused is unable to afford the cost of his/her own legal representation in respect of the contemplated proceedings.
2.2 Whether or not the accused is unable to afford the cost of his/her own legal representation in respect of the contemplated proceedings is a matter to be determined by legal aid officers as follows:
2.2.1 The legal aid applicant completes The means test as provided in chapter 2 of the Guide (see annexure LA l3B hereto). If the legal aid applicant qualifies for legal aid in terms of the means test the legal aid applicant is indigent and is obviously unable to afford the cost of his/her own legal representation. Consequently, if the legal aid applicant qualifies in terms of the means test, the enquiry in respect of the legal aid applicant's ability to pay for the cost of his/her own legal representation need to proceed no further.
2.2.2 If the legal aid applicant does not qualify for legal ad on the basis of the means test, then annexure LA l3C hereto is to be completed and forwarded to the Director who will consider whether or not the legal aid applicant qualifies for the assignment of legal representation at state expense, taking into account the income, expenditure, assets and liabilities of the legal aid applicant, the nature and number of the charges involved, the number of co-accused involved, the forum in which the proceedings are to take place, the anticipated duration of such proceedings and any other factors relating to the complexity and anticipated costs of the conduct of the matter which may be drawn to the attention of the Director.
3. Assignment of legal representation at State expense
3.1 If the legal aid applicant qualifies for legal aid in terms of the means test or in terms of the decision of the Director the legal aid officer receiving the application for legal aid shall instruct a legal practitioner to represent the legal aid applicant, selecting such legal practitioner from the Rotation List in accordance with the Guide.
3.2 In the event of a prisoner declining and/n failing to apply for legal representation at state expense the presiding judicial officer concerned shall nevertheless be entitled to advise the legal aid officer of the magisterial district in which the proceedings are scheduled to take place and/or are taking place that the said presiding judicial officer considers it to be in the interest of justice that a legal practitioner he appointed to represent the said prisoner. Upon receipt of such a notification by a presiding judicial officer the legal aid officer shall act as if the prisoner had applied for and qualified for legal aid.
4. Tariff
The fees and disbursements allowable to legal practitioners in respect of legal services that are rendered pursuant to the provisions of Section 3 (a) of the Criminal Matters Amendment Act, 1 998 (Act No 68 of 1 998) shall be the same as those permitted to legal practitioners from time to time in terms of the representation of criminal accused in terms of the Guide.
Appendix 4:
The Select Committee on Security and Constitutional Affairs having considered the request for approval by Parliament of the Designation of Ireland in terms of section 2(1)(b) of the Extradition Act 1962 (Act 67 of 1962) referred to it, recommends that the Council, in terms of section 231(2) of the Constitution approve of the said designation, subject to the following conditions:
No person surrendered by Ireland shall, in the Republic of South Africa -
(a) be proceeded against, sentenced or detained with a view to the carrying out of a sentence or detention order, or otherwise restricted in his/her personal freedom, for any offence committed prior to his/her surrender other than the offence in respect of which his/her extradition was sought or an offence of which he/she may lawfully he convicted on a charge of the offence in respect of which extradition was sought, except in the following cases:
(i) with the consent of Ireland or
(ii) where the person, having had an opportunity of leaving the Republic of South Africa, has not done so within 45 days of final discharge in respect of the offence for which the person was surrendered by Ireland or, having left the Republic of South Africa after being so surrendered, has returned to the Republic of South Africa.
(b) where the description of the offence charged is altered in the course of proceedings, be proceeded against or sentenced in the Republic of South Africa in respect of that offence except so far as the offence under the new description is shown by its constituent elements to be an offence which would allow extradition from Ireland.
2. A person surrendered by Ireland shall not be surrendered by the Republic of South Africa to another country for an offence committed before the surrender of the person by Ireland except -
(a) with the consent of Ireland; or
where the person, having had an opportunity of leaving the Republic of South Africa has not done so within 45 days of final discharge in respect of the offence for which the person was surrendered by Ireland or, having left the Republic of South Africa after being so surrendered, has returned to the Republic of South Africa.
EXPLANATORY MEMORANDUM: DESIGNATION OF IRELAND IN TERMS OF
SECTION 2(1)(b) OF THE EXTRADITION ACT, 1962 (ACT NO 67 OF 1962).
1. PURPOSE
The purpose Of this memorandum is to obtain Parliament's approval for the Republic of South Africa to designate Ireland in terms of Section 2(1)(b) of the Extradition Act, 1962 (Act No 67 of 1962).
2. OBJECT OF DESIGNATION
The object of designation is to enable the Government of Ireland, upon application by South Africa, to extradite a certain person who is sought to stand trial for commission in South Africa, of serious offences of fraud and theft.
3. HISTORICAL BACKGROUND
3.1 The Director of Public Prosecutions for the jurisdictional area of the Witwatersrand Local Division of the High Court wishes to apply for the extradition Of the said person who allegedly committed serious offences of fraud and theft within the aforementioned jurisdiction.
3.2 The suspect absconded shortly after the offences were discovered. It was later discovered that he had applied for (and was granted) an Irish passport about two months before he absconded.
3.3 The complainant incurred significant expenses to locate the suspect and to assist the SAPS with the investigation of the matter.
3.4 There was an initial attempt to facilitate the matter through the preparation of an application for an order by the Government of Ireland to make applicable to the Republic of South Africa Part II of the Irish Extradition Act, Act No 17 of 1965.
3.5 Advice received from Ireland however, was that such an application would cause
not only delay because of the procedure which needed to be followed in terms of section
8 of the Irish Extradition Act, but that the mandatory speciality rules in terms of sections 20
and 21 of the Irish Extradition Act are not provided for in the South African Extradition Act.
3.6 It appeared after investigations that the South African government would not be able to meet the said speciality rules and that the only other option, due to the fact that no treaty exists between the two Republics, would be to request the aforementioned designation.
4. DISCUSSION
4.1 Section 2(1)(b) of the Act provides as follows:
"The President may, on such conditions as he or she may deem fit, but subject to the provisions of this Act -
(b) designate any foreign State for purposes of section 3(3), and may at any time amend the conditions to which such designation was subjected to or revoke such designation".
4.2 Section 3(3) of the Act accordingly provides as follows:
"Any person accused or convicted of an extraditable offence committed within the
jurisdiction of a designated State shall be liable to be surrendered to such designated State, whether or not the offence was committed before or after the designation of such State and whether or not a court in the Republic has jurisdiction to try such person for such offence".
4.3 Before the designation shall be of any force or effect, Parliament must agree to the designation. Section 2(3)(a) of the Act provides as follows:
"No such agreement or designation or any amendment thereof, or renovation of the designation, shall be of any force or effect -
(a) until the ratification of, or accession to, or amendment or revocation of such agreement or designation has been agreed to by Parliament".
4.4 As soon as Parliament has agreed to the designation, the Minister must give notice thereof in the Gazette. In this regard section 2(3)ter provides as follows:
"The Minister shall as soon as practicable after Parliament has agreed to the ratification of, or accession to, or amendment or revocation of an agreement or the designation of a foreign State, give notice thereof in the Gazette".
4.5 It is a specific requirement that the rule of speciality be recognized and applied in the law of the country that seeks the extradition of a person from Ireland.
4.6 Although our Extradition Act, No 67 of 1 962, provides for the application of the law of speciality, section 1 9 thereof only provides for it in the case of surrender in terms of an extradition agreement.
4.7 Regrettably, section 19 was overlooked when section 2(1)(b) was inserted by Act No 77 of 1996 and was not made applicable to designation.
4.8 However. section 2(1 )(b) provides that the President may, on such conditions as he or she deem fit, designate any foreign state.
4.9 Hence it is necessary to insert into any designation the condition that the rule of speciality as required by Irish law be applied in order to make the relationship with Ireland effective.
5. CONSTITUTIONAL IMPLICATIONS
The proposed recommendation was discussed at the meeting of the Extradition/MLA Committee on 1 8 April 2000 and the committee approved the proposed recommendation. The Interdepartmental Committee includes the State Law Advisors as well as International Law Advisors.
6. FINANCIAL IMPLICATIONS
None
7. RECOMMENDATION
It is recommended that Parliament approve the designation of Ireland in terms of section 2(1 )(b) of the Extradition Act, 1 962 (Act No 67 of 1 962).
Audio
No related
Documents
No related documents
Present
- We don't have attendance info for this committee meeting
Download as PDF
You can download this page as a PDF using your browser's print functionality. Click on the "Print" button below and select the "PDF" option under destinations/printers.
See detailed instructions for your browser here.