Prevention of Corruption Bill; Loss or Retention of Membership of National & Provincial Legislatures Bill

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Justice and Correctional Services

22 April 2002
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
23 April 2002
PREVENTION OF CORRUPTION BILL; LOSS OR RETENTION OF MEMBERSHIP OF THE NATIONAL AND PROVINCIAL LEGISLATURES BILL: BRIEFING

Chairperson:
Adv J H De Lange

Documents handed out:
Prevention of Corruption Bill (.pdf file)
Explanatory Memorandum on Anti-corruption Bill
"Crossing the floor" legislation (as Certified) March 2002

SUMMARY
The Committee heard briefings from the department on the Prevention of Corruption Bill and the Loss or Retention of Membership of the National and Provincial Legislatures Bill also known as the "Crossing of the Floor" legislation. Amendments made to the Corruption Bill were mostly technical. An interesting aspect of the Bill is that it places an obligation on the public in general and public officers in particular to report corrupt transactions. The Bill also includes an extra-territorial application provision allowing the Bill to be applicable to offences carried out outside of the Republic.

The "crossing of the floor " legislation is a combination of two Constitutional amendments, one for the National Assembly and the other for provincial government. The Bill provides for members of a party to move to another party and retain his/her seat or to become an independent. In addition, a party may merge with another, subdivide or subdivide and merge with another. These provisions are subject to it occurring during a specific period of the year and not within the 12 months before or after an election.

The main difference in the new draft of the Loss or Retention of Membership of National and Provincial legislatures Bill is that the President cannot make proclamations on window periods. Other changes include the requirement that the member or members who wish to cross the floor must constitute 10% of their party's membership and a prohibition against disciplining members who wish to cross over to another party. The concepts of mergers and subdivisions of parties were also not in the Bill previously.

The Committee also discussed two treaties; the SADC Protocol on Corruption and the European Convention on Extradition. There was no vote taken on accession to either of the Treaties.

MINUTES
Prevention of Corruption Bill - briefing (continued from previous day)
The Chair noted that the cut-off date for comments on the Bill was the 7 of June. Hearings may still be heard this term.

Mr Gerhard Nel, the department's legal advisor, continued with the briefing of the Bill that had begun the previous day. Raising clause 14 he said that this was the clause relating to sporting events. It was important to note that offenders included those who agreed to accept a bribe.

The Chair remarked that he could not identify the element of the crime from the wording of the provision. He was unsure if the provision included betting.

Mr Nel replied that betting was covered by sub-sections (a) and (b).

The Chair asked for an example of "scheme in commerce to influence" referred to in clause 14(1)(c).

Mr Nel responded that there was a specific country which criminalised this offence but he was not sure which one and would check up on it.

Mr Jeffrey (ANC) enquired as to its meaning of the provision in terms of the definition of "scheme in commerce".

The Chair replied that Mr Nel would follow up on that item and the horse racing issue as well.

Mr Nel commented that the definition of "sporting event" was an important one because it includes birds and animals.

Mr Jeffrey (ANC) questioned the wisdom of including events not traditionally regarded as sports, such as the lotto and scratch cards, within the definition of "sporting event". He felt that it was perhaps joining two things that should not be joined.

Mr Nel responded that that was the reason why it was included in the definition - to cover it - although he agreed that it was not technically regarded as a sport. Subsection (b) of the definition included gambling which was also not usually regarded as a sport.

Mr Jeffrey (ANC) felt that it would perhaps make the legislation easier to read if gambling as such were regulated under a separate section and not necessarily included under sport.

The Chair felt that that was a good idea and also an opportunity to look at other offences relating to gambling.

Mrs Camerer (NNP) questioned why the definition was so specific, and why it did not refer rather to "any event or contest attended by the public" and if 3 people could be considered to be the public.

Mr Nel responded that even a single person could be considered to be the public. He moved on to clause 15, which makes the concealing of gratification in relation to any offence a crime.

The Chair said that the term "subject-matter" should be noted for consideration later.

Mr Nel suggested that this provision could also be covered by the Prevention of Organised Crime Act.

The Chair agreed that maybe it was covered under this Act in terms of hiding away gratification.

Mr Nel moved on to clause 16, which creates offences relating to the corrupt acceptance and giving of gratification.

The Chair stated that this was not where one accepted or gave information but rather when one tried to do so.

Mr Nel clarified that this was when it was demanded from another person.

The Chair explained that the provision was trying to cover all the preliminary steps before committing the actual crime and making those steps an offence as well. For example, soliciting someone to give a bribe would be an offence. He was unsure about the word "receives" and felt that it could be a repetition of the word "accepts". He asked Mr Nel to check up on that.

Mr Nel suggested the possibility of having a definition of "accept" and then including all the various possibilities under it.

The Chair remarked that it was possible to receive a bribe without accepting it, for example if one were handed a cheque or received one in the mail which he then tore up.

Mr Nel said that the definition could be qualified to specify that the gratification must be received to obtain gratification.

Mrs Camerer (NNP) said that the issue was one that centres on money and business dealings in the end. Sporting events were specifically mentioned however no mention was made of business dealings, which was were most of the corruption occurs.

The Chair agreed that this was a valid point.

Mr Nel answered that there is a provision that deals with dealing.

The Chair felt that this could be a potential problem as dealing was not mentioned under the definition for "corruptly". The wrongfulness element had been "pulled out" for certain types of dealing. Mrs Camerer was right in that corruption mostly occurred in big dealings and she had been trying to point out that there should be some reference to business dealings under "corruptly". It may also be possible to integrate it under a definition of "accepts".

The Chair moved on to clause 17 regulating additional offences. Offences are created in respect of inter alia attempts or conspiracy, this was very important in respect of syndicate crime. Clause 18 was raised and the Chair enquired as to its meaning.

Mr Nel responded that the clause regulated intentional obstruction such for example, intentionally destroying evidence relating to a crime.

The Chair felt that this was an important provision as corruption was one of the most difficult crimes to prove and if you didn't make it a serious crime - by placing a prohibition on intentional obstruction of an investigation - offenders would continue to get away with it. he asked why the provision only applied to employment relationships.

Mr Nel replied that other relationships were covered by common law crimes.

The Chair was concerned that this special provision would necessitate employers bringing in people outside of their employment to commit the crime. Considering this consequence he suggested checking the possibility of extending the provision beyond the employment relationship. He moved on to clause 19 regulating the possession or control of property corruptly acquired.

Mr Nel stated that clause 19(1) provides for the offence of the possession of property suspected to have been acquired corruptly and in respect of which the person concerned is unable to give a satisfactory account. The section must be read together with subsections (i) and (ii) which prescribe that a reasonable suspicion must exist and the public officer must be unable to give a satisfactory account.

The Chair did not agree with the provision. He questioned the constitutionality of an accused person being proved guilty on his own account or lack of.

Mr Jeffrey (ANC) raised the issue of the accused's constitutional right to remain silent.

Mr Nel replied that that may be so, however it could still be warranted by the Constitution.

The Chair remained in doubt as to whether the Constitution would allow such a provision. The only reason for the charge would be that the it was believed that the accused was living beyond his means and another person believed that he/she was unable to give a satisfactory explanation. The accused would then be found guilty on a reasonable suspicion and not beyond reasonable doubt. He remarked that he would need a lot of persuading on the constitutionality of that remark.

Mr Jeffrey (ANC) added that an important element of property law was being able to identify stolen property as such. In this case, the issue was wealth that could not on the face of it be identified as stolen or wrong. It might be useful to get a legal opinion or have a look at what the Constitutional Court has said about stolen property.

Mr Nel pointed out that a legal opinion was available.

The Chair stressed that the test would always be for the state to prove their case beyond a reasonable doubt. He would have great difficulty accepting anything less and he had no doubt that the provision was unconstitutional.

Mrs Camerer (NNP) pointed out that one of the main problems when it came to proving a corruption case was obtaining evidence. However this clause would abstain the police from obtaining evidence.

Mr Jeffrey (ANC) posed the situation of where no crime had been committed but the accused person did not wish to disclose, should one then be forced to disclose? He felt that that the provision would encounter privacy problems.

Mr Nel responded that the person who had not committed a crime would then be in a position to give a reasonable explanation.

The Chair replied that the such a person would not be in a position to give a reasonable explanation. He questioned whether, if they remained silent, they could then be charged. He felt that this created the potential for abuse. As part of the Committee, he had just been around the committee and seen how the police operate and believed that this would leave open the door for abuse. In the event of abuse, nothing could happen to the policemen involved as if the matter went to court the state would not have to prove their case beyond a reasonable doubt as one of the elements was that you had to give a reasonable account.
He was of the opinion that clause 19 would not be able to be passed in that form.

The Chair moved on to clause 20, dealing with the duty to report corrupt transactions. He felt that the clause was a good one and one of the first to require a public officer to report corrupt transactions. He enquired as to why it only applied to public officers.

Mr Nel responded that although ss(1) deals with public officers only, ss(2) deals with "any person". A distinction had to be made because public officers could report to different people.

The Chair requested that a note be made that where there was a duty to report, the provision should be made more flexible. The could be "flushed out" later but the principle itself was the important issue. He moved on to clause 21 providing for extra-territorial application of the Act.

Mr Nel noted that this provision had been changed drastically. The intention was now that the offence should be (a) committed through a South African citizen or (b) committed by a South African citizen. The provision was however going to be redrafted taking into account German legislation.

The Chair questioned how an accused could be charged in the court of a foreign country in terms of this Act.

Mr Nel replied that it was possible to charge a person in another country.

The Chair did not see how he could be charged in terms of a South African Act. He enquired as to what the provision was aiming at doing. Where the drafters contemplating extradition.

Mr Nel answered that they were.

The Chair said that it could mean that if the accused was charged in a foreign country for the same act, he could then not be extradited for it. He moved on to clause 22, which he felt was not really needed although it did have some value. Clause 23 he said had already been looked at as had clause 24.

Mr Jeffrey (ANC) asked for more information on clause 25.

Mr Nel replied that there was a lot of precedent surrounding the common law and so clause 25 reinstated the common law crime of bribery.

The Chair raised clause 26, which grants jurisdiction to the Scorpions unit in respect of corruption crimes without having to have it proclaimed by the president.

Mr Nel stated that this was necessary for corruption to be taken seriously.

The Chair felt that one must not forget about the police, of which there were thousands who were investigating corruption. He felt that by-passing the presidential proclamation would result in mayhem and did not feel that the provision was necessary. The Chair moved on to clause 27 and was concerned that, in terms of the wording of the clause, that the Act would be applicable cases that had occurred before the passing of the Act.

Loss or Retention of Membership of The National And Provincial Legislatures Bill
The Chair requested Mr De Lange, the department's legal advisor, to take the Committee step by step through the Bills. He added that in terms of the Constitution, separate Acts were needed to allow for crossing of the floor at national and provincial/local level. The first constitutional amendment needed only to be passed by the National Assembly while the second needed to be passed by both Houses of Parliament, which was why separate Bills were required. South Africa was unique in that s 1 of the Constitution sets out the broad principles against which the Constitutionality of an amendment can be tested. He asked Mr De Lange when the Bills had been introduced into Parliament.

Mr De Lange replied that there was a bit of a debate as to what constituted being introduced into Parliament. However, since the day before the formal Bill had been released to parliament.

The Chair requested him to decide on a date from which other procedural aspects could be determined.

Mr De Lange stated that the first Bill had been modelled on drafts that had been introduced late the previous year but included certain additions. Amendments were made to s 158(1)(a) to deal with the issue of proportionality at local government level. A consequential amendment was made to ss(3) to keep the total number in line with proportionality.
Clause 2 provides that there shall be no crossing of the floor within the first 12 months of an election. The general term was 5 years for municipal councils. In addition, this would only be allowed lawfully if there was not more than a 10% increase in seats although input from local government suggested that it should not be more than a 25% increase. He was unsure if the 10% applied proportionally or to the ward seats.

Ms Camerer (NNP) felt that the key word in the end was "proportionality".

Mr Jeffrey (ANC) felt that the wards would be included in the totals number of seats the party holds, otherwise they would have specified that the 10% applied to the proportional number of seats.

The Chair requested that clarity be obtained from the Minister as to what it was that he wanted.

Mr De Lange continued that the main point was that if you crossed the floor you kept your seat. In addition, in terms of clause 3 an independent was allowed to join a party and a member of a party was allowed to become an independent.
Clause 4 was interesting because it deals with parties and allows them to merge, or subdivide or subdivide and then merge with another party.

The Chair asked why it was necessary to specify 10% for a subdividing and merger.

Mr De Lange answered that this was to distinguish between two parties joining and becoming one, and a party subdividing and merging with another.

Mr Jeffrey (ANC) commented that he had never heard of a party subdividing and merging with another.

Mr Swart (ACDP) remarked that the parties' constitutions would have clauses dealing with leaving and mergers.

The Chair added that the Constitution talks of parties subdividing and that was were the wording came from.

Mr De Lange went on to say that ss(5) was an important provision because it provides for only two periods a year (outside of the first and last 12 months) when crossing of the floor can legitimately take place.

The Chair recommended that it be restricted to only once a year. He was worried about the potential for destabilisation at local government level.

Mr De Lange stated that what remained to be seen was which time of the year should be specified.

Mr Jeffrey (ANC) raised the issue of by-elections and the potential for destabilisation in that respect.

Mr De Lange commented that the interesting thing about by-elections was that the public voted for a particular person so it could be that the Bill would not apply to them.

The Chair felt that equality problems could be encountered in that respect and it should be remembered that the whole Electoral Act was in the process of being rewritten.

Mr Jeffrey (ANC) enquired whether so much detail should go into the Constitution or if was better for it to be placed in a separate Act.

The Chair replied that it would have to go into the Constitution because there is a proportionality clause in the Constitution that needs to be balanced out.

Mr Swart (ACDP) was concerned that although this was a transitional arrangement, it would be in effect setting out guidelines for the task team to follow.

The Chair responded that this was not necessarily the case as the task team could do whatever they wanted to do in creating a new system.

Mr De Lange pointed out the second important leg of ss(5) was that it allowed a counsellor to change membership only once before the expiry of the window period and secondly, that a party may merge or subdivide only once during the window period.

Imam Solomon (ANC) questioned whether a member who had left a party to become an independent could then be allowed to become a member of another party because he had technically changed his membership to a party only once.

The Chair replied that it could be construed that way and requested that the provision be made clearer.

Mr De Lange moved on to ss(5)(c) which prevents disciplinary action by a party should it become aware of an intention by one of its members to change parties.

Mr Jeffrey queried why the word "suspend" had been used.

The Chair answered that if one were suspended, he would be excluded from the party.

The question was raised as to what would happen to a person who changed parties, but who also held the position, for example, of Mayor.

The Chair replied that you were still entitle to keep your seat. Other positions were dealt with in separate Acts.

Mr Jeffrey (ANC) remarked that he seemed to remember other legislation which makes it difficult to remove people from positions once they were elected.

The Chair asked Mr De Lange to make a note of it and perhaps raise the issue with local government people.

Afternoon session
Constitution of the Republic Amendment Bill

The Committee was completing their consideration of the implication of crossing the floor at local government level.

Mr Johan de Lange pointed out that a term is therefore five years and for two years on either side of the election, the legislatures' party composition cannot change. The principle against the crossing the floor therefore remains except for three exceptions. Namely, three years in the middle, individual Members on a party list, if that Member/s represents at least 10% of the seats held by that party and thirdly, mergers. Party mergers are allowed at any time and there is no 10% requirement except in the case of subdivision of a party, in which case 10% membership is required. There are further requirements; a Member may only walk over once and that Member cannot be disciplined during that period.

Loss Or Retention Of Membership Of National And Provincial Legislatures Bill (draft as at 15/02/02)
Mr de Lange outlined the differences between crossing the floor at local and provincial government levels. Item 23A of Schedule 2 of the Interim Constitution, Act 200 of 1993. The new draft includes the provision, Clause 23A (3) (a)(ii), that the Member or Members who becomes a member of a new party must constitute not less than 10% of the total number of seats held by the original party.

Item 23A (4)(a) will govern the position on merging or subdividing of parties. Again the 10% requirement is brought in, upon subdivision of a party.

Item 23A (5) will deal with window periods. In the previous draft of the Bill the President could declare a window period by proclamation published in the Government Gazette. But this provision has been dropped for two reasons; in order to be brought into line with the local government provisions and also because there was dissatisfaction with the President having the power to issue the proclamations.

Item (5)(c) will afford protection to Members who might wish to cross over. The Member may not be disciplined, for instance by having their party membership terminated and thereby being disqualified from holding office.

Clause 23A (6) will require that after changes in the composition of the legislature a party affected by the change must submit a revised list of Members of the legislature.

The Chairperson asked Mr de Lange what he thought about the name to be given to the Act. It would be called 'The Loss or Retention of Membership of National and Provincial Legislatures Bill', but does it reflect that it is a bill amending the Constitution?

Mr de Lange said that strictly speaking it is not a constitutional amendment. The Bill is simply repealing a section in the Interim Constitution, namely, item 23A of Schedule 2.

The Chairperson pointed out that the Interim Constitution is part of the Final Constitution.

Mr de Lange suggested that perhaps they could change the name of the Bill.

The Chairperson said that this is a Bill governing loss or retention of membership, but this does not indicate that it is a constitutional amendment.

He commented that the principle are more or less the same as those governing the position at local government level. The Bill was introduced in the Justice Portfolio Committee and it would still have to be introduced in the National Assembly, which has not been done yet.

Mr de Lange said that once the Bill is referred by the Portfolio Committee, it would not come back to the Committee. The NCOP would have to review the amendments.

The Chairperson said that this was fine because once the Bill was referred they would have made the necessary amendments. He asked why the clause about harmonising, which is in the preamble of the local government provisions. The harmonising clause should be included in the national section as well.
Mr de Lange would look at this.

Mr Swart asked whether the only difference in the new draft of the Bill was that the President could not make proclamations on window periods.

The Chairperson said that there were also other changes. The 10% membership requirement and the prohibition against disciplining members were other principles that had changes as well as the provision on 12 months at the end. The concept of mergers and subdivisions of parties was also not there previously.

Discussion
A committee member noted that it seemed that the last elections were announced three or four months before the actual elections. Therefore how would the twelve month period be determined?

The Chairperson explained that the Act was drafted in such a way that stipulates that there is exactly five years in between elections. However, there would not always be a twelve month period exactly. It would be twelve months from the date on which it should have taken place, backwards. He was unsure what would happen if an election was called at a later date, once the five year term was over.

Mr de Lange said that the life of a legislature cannot be extended.

The Chairperson acknowledged this but it was how it happens.

A Member pointed out that the last national election had been held on 2 June 1999 whereas the election five years before was held on 27 April 1994.

Mr de Lange said that there is a transitional arrangement in terms of which Parliament does not exist in this period, therefore no crossing over is allowed.

However, the Chairperson, said, during this time they were still Members of Parliament, still getting a salary.

Mr de Lange said he would check on the position on elections being held at a later date. There was no problem if the election was held earlier. Section 49 of the Constitution applies: within 90 days after the Assembly is dissolved or its term expired, elections have to be held. However, Section 49 (4) provides that the National Assembly is competent to function until the day before polling.

The Chairperson said that the period of the extension must be included when the crossing over if prohibited, so it would be twelve months and the additional months.

Mr Swart asked whether this covers the provincial legislatures as well. If the provincial legislature is dissolved prior to the national general election, would the time periods affect them?

Mr de Lange said it would because the second twelve months would not be applicable. Something new could be added here, such as after the President announced the election. It would apply anew if there is an election in that legislature.
He pointed out that at local government level all structures would be part of the election but at provincial level it applies when each province has an election.

The Chairperson asks what happens when there is a vote of no confidence. Will the five year period then apply to all the legislatures, even if the legislatures have their own dates for elections?

Mr de Lange said he understood it to be like this: the term is five years, but it is incidental that the dates for elections are the same nationally and provincially.

The Chairperson said he thought that this causes chaos because part of the National Parliament is dependent on the provinces, for instance, the NCOP and during this period the provinces could put through whatever provisions they wanted.
He asked Mr de Lange to check this provision.

Mr Swart pointed out that Section 109 of the Constitution seems to be a restraint on this.

Mr de Lange said that if there is an election after three years, the particular legislature would have their own five year period. He referred to Sections 60 and 62 as indicating that the Constitution had it in mind that this might happen.

The Chairperson said that the initial intent was to harmonise things and bring the dates in line with each other.

Constitution of the Republic of South Africa Second Amendment Bill
The Chairperson said it seemed to have been forgotten that the NCOP would be affected by crossing the floor. There would be some sort of domino effect. Allowing changes to party proportions must mean that the make up of provincial delegations must be examined.

The Constitution governs the appointment of provincial delegates after an election. The Amendment Bill proposes a very simple mechanism in Clause 1(2)(b). But was this done in accordance with the 'national legislation' referred to in the Bill or the Constitution?

Mr de Lange said it was in terms of the Bill but it is a constitutional amendment.

The Chairperson pointed out that once the Act has been amended and passed it changes the words in the Constitution.

Mr de Lange said the likelihood of the NCOP being affected had to be looked at. You would need substantial changes in the provincial legislature before this happens.

The Chairperson asked that the preamble be worked on.

He emphasised that the position must be clear. Mr X in the NCOP cannot walk over as an individual but only if the provincial composition changes. This is a consequential amendment. If provincial members walk over, the composition of the provincial delegation changes.

Mr de Lange commented that Ministers are also Members of Parliament. If a Minister crosses the floor that Minister loses his/her Cabinet post.

Local Government: Municipal Structures Amendment Act, 2002
The Act amends the Municipal Structures Act, 1998 to enable a member of a Municipal Council to become a member of another party but retaining membership of that Council.

The Chairperson said that initially it was thought that changing numbers in the Council would not affect the composition of the NCOP but submissions received indicate that it would affect the composition.

Briefing on SADC Protocol Against Corruption
Mr Allers, State Law Advisor, pointed out that the Director General of the Department of Justice and Constitutional Development has been designated to approve the protocol. Its objective is to inhibit and eradicate corruption in both the public and private sectors. The protocol has been signed by all SADC heads of state and is ready for ratification. The memorandum was therefore being brought to request Parliament to ratify the protocol.

The content of the Protocol covers acts of corruption to which the Protocol is applicable, the measures which state parties can take to prevent and eradicate corruption committed in and by private sector entities. It covers the seizure of proceeds from acts of corruption, establishes a Committee to oversee the implementation of the protocol and a resolution recommending that Parliament designate the Director General of the Justice Department as the authority for the purpose of the Protocol.

Ms Camerer (NNP) asked whether the South African Act covered everything in the Protocol.

Mr Allers said that Mr Gerhard Nel had confirmed that everything in the Protocol is covered.

The Chairperson, Adv de Lange, said that the Protocol could be voted on at a later stage.

Briefing on the Council of Europe's Convention on Extradition
Mr Allers pointed out that there were two treaties and a memorandum to be considered.

This Convention was similar to other extradition treaties which Parliament has signed before. Article 30 is the most important. The Committee of Ministers of the Council of Europe may invite other countries which are not members of the Council to accede to the Convention. In May 1996 the Department of Foreign Affairs informed the Council of Europe of South Africa's wish to accede to the Convention.

Article 28 is also important and provides that the Convention will trump any bilateral agreements, treaties or conventions governing extradition between any of the parties acceding to the Convention. Parties may conclude bilateral agreements to supplement the Convention.
Article 28(3) provides that this arrangement will not adversely affect any arrangement if extradition is done on the basis of a uniform law, for instance SADC may develop a uniform law on extradition.

Mr Andries Nel (ANC) asked whether, in the case of Mr Jurgen Harksen, for instance, Mr Harksen would still be in the country were SA to accede to this Convention.

Mr Allers said, emphatically, that he would not still be in the country.

Ms Camerer asked whether SA would have extradition agreements with additional countries if they accede to the Convention.

Mr Allers said that there were at least 25 addition countries, such as Sri Lanka and Nigeria. These countries are all signatories already and with whom we do not have extradition agreements already.

Ms Camerer asked whether SA is not currently having problems with Nigeria.

Mr Allers confirmed that this treaty will make things easier in the extradition field.

Mr Nel asked what the treaty says about extraditing people who are facing the death penalty.

The Chairperson read out Article 11, which states that a country may refuse to extradite where the person faces the death penalty. The treaty also deals with political offences and so forth.

Mr Nel asked whether SA has a pro forma agreement or a uniform agreement when signing extradition treaties.

Mr Allers said yes, there is an extradition committee, on which the Chief State Law Advisor sits, Adv de Lange, legal administration officers and law advisors from the Department of Foreign Affairs. This committee goes over each extradition agreement to ensure uniformity.

Mr Allers pointed out that Article 2 of the Convention provides that where a conviction and prison sentence has occurred the punishment awarded must have been for a period of at least four months. However, there has been some confusion over time periods. The South African Act provides for a six month period.

The Chairperson said that there are two situations in Art 2(1). One where a person has not had a trial yet and the person must face at least a one year sentence. Secondly, where a person skips bail, and must face at least a four month sentence.

Mr Allers said that there is a difference between the two.

Adv de Lange said it was a question whether they wanted to raise the term for the sentence sought.

Article 6 empowers parties to the Convention to refuse extradition of their own nationals. South Africa recognises double nationality. This means that the extradition of someone will not be barred where the person is a citizen of a country which prohibits the extradition of its own nationals.

Adv de Lange asked Mr Allers if he was sure that SA wanted to go this far. Mr Allers said that they were sure.

Mr Allers explained that the purpose of the protocols is to clarify, where necessary, and amplify the Convention. In terms of Article 1 of the additional protocol, political offences will not include the following.; political crimes are excluded but not crimes against humanity.

With respect to the second additional protocol, regarding amnesty, it will not be granted for an offence which has been pardoned as a category.

Adv de Lange said that amnesty differed in countries but it is usually the crime which is given amnesty. South Africa has never declared an amnesty on any crime. It has certain rules and if those rules apply to someone, that person qualifies for amnesty. In SA, where there was any violence, that person had to individually apply for amnesty. Chile, for instance, granted amnesty for categories of crimes with a political motive. Murder would be problematic.

Due to time constraints there was no further discussion on the Convention.

The meeting was adjourned.















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