The Committee resumed deliberations on the Prevention and Combating of Trafficking in Persons Bill. The Committee felt that the new draft on clause 30A, proposed by the National Prosecuting Authority (NPA), attempted to introduce completely new provisions that would have to go to new public hearings. Members suggested that perhaps the Prevention of Organised Crime Act (POCA) should be amended to ensure that its asset forfeiture provisions expressly covered individuals as well as organised crime syndicates. The drafters took the Committee through clause 31 and explained the procedure with the Criminal Assets Recovery Account (CARA), as also the reason for regarding a criminal Court’s order as a civil judgment. A Member suggested that all provisions around CARA should be consolidated in one piece of legislation, to ensure that there was not differentiation between cases, and perhaps it was necessary to consider further amendments to the POCA by way of the Schedule to this Bill. Members discussed how funds would be distributed, either to victims or to government departments or approved entities assisting victims of crime, and noted the need to train magistrates and prosecutors on appropriate orders. The Committee did not discuss Chapter 7. The drafters took the Committee through the General Provisions, mainly describing the changes effected following the Committee’s decision not to have a separate inter-sectoral Committee, and noting the responsibilities that the Department of Justice would in future have to coordinate responses and directives from other departments, as head of the Cluster. A new clause provided that the Minister must make regulations to establish and regulate the functioning of a mechanism to facilitate coordination of the new Act. In respect of the Regulations, the drafters noted that there was a distinction between regulations that the Minister “must” make, around the lodging and hearing of appeals, and the manner in which prosecutors must refer suspected child trafficking cases, and “may” make, in relation to other matters around implementation. Members requested that some of these functions that applied to other departments should be moved, and listed as enabling provisions. The wording relating to submission to Parliament would be adjusted for clarity, and the option of 60 days inserted. Members asked that provisions in clause 44, which appeared to be trying to micro-manage, should be deleted. The drafters would still report back fully on delegation of powers and assignment of duties. Clauses 45 to 47 were flagged for later consideration. Suggestions were made to improve the practicality of the transitional provisions relating to the Department of Social Development’s accredited service providers. The Committee would take up outstanding issues with the Department of Home Affairs.
The Committee received a briefing from Legal Aid South Africa (LASA) on the revised Legal Aid Guide. It was stressed that LASA still applied the means test, but nobody, even if s/he failed the means test, would go without legal representation. The revisions related to extension of the mandate of LASA, so that it could deal with cases related to reckless and negligent driving, but legal representation before an administrative tribunal was excluded. There was still a restriction on the number of civil matters that LASA could handle. The means test income and asset limits were revised. Regional Operational Executives were now given a discretion to approve fully subsidised legal aid in certain cases where the means test income was exceeded. There was a further stage added into the section 3B process, to question an applicant’s means, following the cases of LASA v Porrit and Bennett. Powers were being granted to the Justice Centres to approve judicare. There were also additional provisions around the employment of expert witness. In future, judicare practitioners would be contractually bound to submit accounts within three months, so that they could be finalised in four months. Consent of applicants and practitioners would be sought to conduct quality control tests also in judicare cases. The tariffs for civil and criminal matters were clarified, and policy and procedure provisions were incorporated into the main body of the Guide. The representatives explained these provisions in more detail. Members questioned the progress of the Legal Aid Amendment Bill and were told that it was likely to be submitted to Parliament in early 2012. They asked if the procedure for ratification of the Guide could be revised in future, so that drafts were submitted to the Committee before the revisions were finalised. The Porrit and Bennett case was discussed, tying in with discussions on the 3B procedure, and the Committee was assured that this did not attempt to prescribe how the Court should deal with the inquiries. Members questioned the provisions for accounts, but were assured that this was a contractual issue not impacted upon by the Prescription Act. Members asked if the LASA checked whether those receiving grants were entitled to them, and raised concerns about the requirement that an applicant must be living in the property that s/he owned. Members asked if applicants who were refused assistance would be told of their right to appeal, said that the notifications should be printed in the language of the area, asked how the Legal Aid Guide was publicised, and commented that the work of the LASA needed to be communicated better, and in all areas. Members noted the funding concerns and suggested what motivations could be made for extra funding. Members questioned whether LASA should not take on more civil matters, particularly personal injury matters, on a contingent basis, and discussed recovery of costs and portion of capital awards in these cases. Although the LASA assured the Committee that no child would ever be refused legal aid, it conceded that a Circular could be issued detailing the provisions of the Child Justice Act, and this would be specifically referred to in the next Guide. The system for allocating judicare matters was questioned and explained.
Members discussed the Committee Report on the Treaty for Mutual Legal Assistance with
Members discussed the Committee Report on the meeting with the Magistrates’ Commission, emphasised the point that disciplinary action should not be delayed when appeals were pursued, and noted that this point would be raised at the 17 September meeting. Members unanimously adopted the Report, as amended.
Members finally outlined the matters that the Committee still needed to discuss, including funding for the Public Protector, tensions between the National Prosecuting Authority and Asset Forfeiture Unit, the 14 September public hearings on the Constitution 18th Amendment Bill, and a report back from the Department on the Cyber-Crime Treaty and Code of Administrative Practice.
Prevention and Combating of Trafficking in Persons Bill: Discussion of clauses 30 to end
The Chairperson noted that when the Committee adjourned on the previous day, it was busy with the question of asset forfeiture of accused persons in trafficking cases. The Committee was working from the revised draft of the Prevention and Combating of Trafficking in Persons Bill (the Bill). The Committee had not been satisfied with what was placed before it by the National Prosecuting Authority (NPA) in respect of the new clause 30A of the Prevention of and Combating of Trafficking in Persons Bill (the Bill).
Mr J Jeffery (ANC) said that the matter had been left open, but it was problematic that such a major provision was being raised so late in the proceedings. He regarded the suggestion now put forward as “a complete non-starter” as it was going much further than the law currently went on asset forfeiture. The new draft presented on the previous day appeared to echo what was already contained in the Prevention of Organised Crime Act (POCA) and was unnecessary. He wondered if it was worth continuing to discuss this. He had a problem with the provisions around compensation under the newly drafted clause 30A.
Ms D Schäfer (DA) said that a power was being given to the NPA that was previously given to the police. The question was whether the prosecuting authority needed this power.
Mr S Swart (ACDP) agreed that this new proposal was too wide. He wanted to hear more input on the intentions behind it and the benefits of introducing this provision. If clause 30A was not included then the NPA would not have these powers. In principle, the police could rely upon the POCA provisions, but the NPA had no equivalent powers under POCA. The question was whether it was desirable that they should.
Mr Jeffery said that the Asset Forfeiture Unit (AFU) did have these powers and this would be the appropriate body. He asked if there was anything new in this Bill that was not covered under any other existing law.
Mr Lawrence Bassett, Chief Director: Legislative Drafting, Department of Justice and Constitutional Development, said that he had originally drafted a version for this clause, but the AFU had then come up with this counter-proposal, and the latest draft reflected what they had requested. If indeed this clause was a duplication of POCA, then he agreed that it may not be needed.
Mr Swart asked on what basis the AFU had motivated for different wording.
The Chairperson asked why it would be necessary to “fix” anything if it was not broken. He asked if there was a specific problem in POCA.
Mr George Hardaker, Senior Specialist Investigator, National Prosecuting Authority/Asset Forfeiture Unit, said that there was not, but for the specific purposes of trafficking, the NPA thought it would be advantageous to extend the scope of what could be forfeited, so that anyone involved in human trafficking would have to weigh up the risks of having his assets forfeited. These assets were often used to gain control over victims, when the traffickers sought to portray themselves as people of wealth and power.
The Chairperson summarised that seemingly the NPA wanted was to extend whatever POCA applied to organised crime, to an individual who was involved not in organised crime, but in trafficking.
Mr Hardaker said that this was not quite correct. Most human trafficking was conducted in an organised manner. The NPA wanted a provision that would not require it to prove the nexus between the proceeds of crime and the crime. The Court might not be easily persuaded that the accused’s possessions were in fact being used as an instrument to committing the crime. If the proposal was accepted, then it would hamper organised criminals from being able to portray themselves as people of means, and would limit the power that victims perceived that these criminals had.
Mr Jeffery said that there was general agreement that nothing was “broken”, but the issue was that the AFU wanted to have the power to do something. At the moment, forfeiture was limited to instrumentality. The AFU would have restrictions on immovable property, but as far as movable property was concerned, it wanted to be able to seize anything. That was a huge leap from the original proposals, and he did not think it could simply be inserted in the Bill without a public participation process. forward. This could not be done without a public process of participation. He was outraged at this attempt, and believed it was unacceptable.
Ms Schäfer did not understand how the proposed new clause would assist. If people who displayed wealth, were convicted, then surely the AFU could apply to attach the asset. She agreed that the proposal represented a substantial change which could not simply be inserted without further public comment, which would delay the process of the Bill.
Mr Swart appreciated that there were concerns on this point, but said that it was partially covered in the original draft. He thought that there was still time to give further consideration to the original clause 30(a), and that the Committee would need to be persuaded that POCA did not provide sufficient protection.
The Chairperson confirmed that it was not suggested that what was on page 59 should be done away with.
Mr Jeffery clarified that he was objecting to the provision to suddenly extend what could be forfeited beyond instrumentality and proceeds. The question of whether forfeiture should apply at all had been discussed previously, and the draft that Mr Bassett had produced did not contain entirely new principles. He asked for a specific outline of what the AFU, NPA and Directorate for Priority Crime Investigation (DPCI or Hawks) wanted to achieve.
Mr Hardaker said that it was hoped that the new draft would effectively serve to disrupt the activities of traffickers, and deter them from “living the high life” and flaunting wealth and possessions in order to attract and deceive victims. Currently, traffickers competed with each other as to who could flaunt the most, in order to attract pimps to work for them, who would then attract victims.
Mr Jeffery said that he still had difficulty with the motivation for the concept. The Committee wanted to ensure that traffickers were convicted, and were penalised to heavy fines. Too many of the cases had tended to be plea-bargained, until the De Santos case. Unless drafters could come up with something within the existing legal framework, then clause 30A did not appear to deal with forfeiture. He was not sure about the involvement of the police, but perhaps there were issues about who should attend to the forfeiture.
Mr Swart said that if there was a problem with POCA, then perhaps it was necessary to look at amending POCA. That was a separate debate. He asked if Mr Bassett could explain if there was any difference between his draft and the wording of POCA, and said that if they were essentially the same, then it made no sense to repeat the provisions in the Bill. He asked if the DPCI could give some information on whether trafficking crime syndicates showed any unique features, to help the Committee in understanding why different powers might be required.
Lt Col D Enus, Coordinator: Human Trafficking, DPCI, said that assets would be “flashed around” by the traffickers. He confirmed that the activity of trafficking was organised in most cases. There was nothing that was needed, other than POCA, to take away the assets.
Ms Schäfer said that if indeed this provision needed to merely extend POCA, which applied to organised crime, to individuals, then this could be simply stated, to ensure that an individual would not be able to escape the provisions simply by not belonging to a syndicate. That would also mean that the NPA would not have to prove that an accused was part of an organised crime ring.
Mr Hardaker said that although POCA was aimed at organised crime, there had been a few court decisions that indicated that individuals could also be subject to forfeiture – for instance, a vehicle had been removed after repeated offences of drunken driving.
Ms Schäfer said that it was undesirable to have to prove repeated offences for trafficking.
Mr Hardaker thought that a court would be persuaded by the severity of the trafficking crime.
The Chairperson suggested that the Committee needed to give more thought to this point. The bottom line was the instrumentality of the crime, and whether the assets were derived from the crime. Members seemed to agree that it would not be acceptable to widen the scope to be able to collect anything “in the vicinity” of the trafficker.
Mr Bassett asked whether the NPA or AFU must come back to the Committee with further motivation.
Mr Jeffery noted that there was merit in the suggestion of Ms Schäfer. He was concerned to avoid further delays. In principle, the Committee must decide if it wanted to provide for forfeiture of instrumentalities, before deciding if the position was adequately covered already.
The Chairperson summarised that the Committee would look at what was put down on pages 59 and 60, and decide if this was to be extended to individual traffickers. If the Department wanted to come forward with further proposals, it could do so.
Ms Schäfer added that any additional submissions should be motivated, and it would be useful to comment whether it was possible to extend POCA to individuals.
Mr Bassett said that he had had reservations about this provision, but he had tried to draft it around what the AFU requested. In his discussions with the AFU, it was highlighted that this provision merely said that in certain circumstances, assets were forfeited to the State. Under POCA, a curator would be appointed when assets were forfeited. These assets would be sold, and the proceeds would be paid to the Criminal Assets Recovery Account (CARA).One other concern was that this Bill provided no mechanism to liquidate moveable property and ensure that the proceeds ended up in CARA.
Mr Jeffery would prefer that all aspects of asset forfeiture should be handled in one piece of legislation, so that no differential situations applied under different Acts. He suggested that there was perhaps a need to revisit the legislation. This could be mentioned in the Committee’s Report.
Mr Jeffery then noted an amendment of Schedule 1 of POCA, set out on page 99 of the Bill. He wondered if it would not make sense to amend POCA to make trafficking an organised crime. This might make it clearer. Lt Col Enus had indicated that it was highly unlikely that any trafficking would be done outside of an organised crime syndicate.
Mr Hardaker indicated that the AFU would be in favour of an amendment to POCA, as proposed on page 99 of the Bill. This increased the opportunity for the application of Chapter 6, which was limited to offences listed in Schedule 1 of POCA. It could also put racketeering within the scope of the Bill.
Clause 31:Compensation to the State
Mr Bassett indicated that the Committee had not deliberated much on this clause. Certain amendments were proposed by the NPA. There was a recommendation that a specific reference be made to “in terms of Chapter 2”, so that this was not seen as applying to the whole Act. The orders of compensation were discussed on the previous day. There were also provisions in terms of clause 9(5). It would be possible for the Court to make an order, after an application by the prosecutor. The draft now indicated that “return” would be included, as well as “repatriation”. The Court’s order would have the effect of a civil judgment.
Mr Bassett explained that the CARA Committee consisted of a number of officials from different departments. The objects of the Committee would be to advise Cabinet on forfeiture, in terms of POCA, and to advise Cabinet on the rendering of financial assistance in combating crime. It would also advise on rendering of financial assistance to other funds or institution that assisted victims of crime. The provisions of section 69 of POCA must apply to any department or accredited organisation that received funds. That section provided for certain procedures to be followed if money was paid over to a department or organisation. For instance, an accounting officer must be appointed or designated, who would be charged with the responsibility of accounting for money allocated. He then noted that subclause (e) stated that the Directors General (DGs) of Justice and Social Development, in consultation, should establish guidelines.
Mr Bassett noted that he had spoken to the NPA official in charge of CARA, to check whether these provisions would cause any problems, and he had been satisfied that they would not.
Mr Jeffery said that he was happy with the provisions of subclause(1) but was concerned whether subclause (2) was placed correctly in the Bill. CARA applied because trafficking was an organised crime. If there were amendments to be made to the CARA provisions, those should surely be made through POCA, not through this Bill. He did not think that different procedures should be followed, according to whether or not the matters involved trafficking. If there was anything new that was being introduced, then he suggested that perhaps POCA should be amended, by way of the schedule to this Bill, to ensure that it would apply to all matters, and not just to trafficking. He thought that subclause (2)(a) contained empowerment provisions for compensation to be paid according to the CARA.
Mr Bassett said that this seemed to make sense and he would look into it
Mr Hardaker said that CARA would only receive funds from a Chapter 5 or 6 procedure. This was a separate procedure dealing with compensation to the State. NPA believed that it would be appropriate for funds to be paid to CARA.
Mr Jeffery said that Mr Hardaker’s comment was sufficient motivation for having subclause (2)(a), but then enquired if it was necessary to have the rest of that clause.
Mr Hardaker said that this clearly extended to government departments also being able to be beneficiaries of the CARA funds under this Bill. Accredited organisations would already be covered in POCA, because this referred to institutions or organisations that rendered assistance to victims of crime.
Mr Jeffery still said that he was uncomfortable with the fact that other money in CARA could not be accessed. This was why he thought that there was a need to amend CARA, to avoid confusion.
Mr Hardaker explained that other government departments were already beneficiaries from CARA in regard to law enforcement. However, it was not clear whether CARA could be used to compensate government departments for the assistance that they rendered to victims of crime, so he thought it would be useful to retain the rest of this clause.
Mr Jeffery said that subclause (1)(d) related specifically to compensation for care, return and repatriation of victims. The Committee would not want all money to be paid straight to CARA, and then used for compensation without considering care, return and repatriation.
Mr Hardaker clarified that the compensation paid to government departments would enable them immediately to recoup the expenses incurred or reasonably expected to be incurred. The departments would not have to limit their applications for specific compensation in a specific case, but could apply for funds in order to render assistance to other victims when required.
Ms Schäfer asked if it was appropriate that proceeds should be paid to government departments, and wondered if they should not all be paid directly into CARA.
Mr Hardaker said that in effect, whenever funds became available, victims would be paid first, before any remaining funds went to CARA.
Mr Jeffery thought that there should be compensation to the state, or a payment into CARA, and then the normal applications process should apply.
Ms Schäfer said that here was also uncertainty around the definition of “the State”, and where the money could be paid.
Mr Swart said that “the state” meant that National Treasury would be paid.
Mr Jeffery mentioned that one example would be that the convicted person would have to cover the cost of the return air flight of the victim.
Mr Swart agreed that this was a good example. He expanded that in other cases, the payments would be similar to paying fines into Court, which would then be directed to the State’s central revenue fund.
Mr Jeffery noted that subclause (1)(d) set out a specific purpose of repatriation or care. He thought that the accredited organisation would have to be paid out of the compensation.
The Chairperson asked who would determine this.
Mr Jeffery responded that the Order of Court would set this out, and he gave an example of the kind of Order that might be granted.
Ms Schäfer asked whether it would be possible to ensure that the magistrates would know about those orders, or that the prosecutor would ask for them. She wondered if the Bill should not say directly that payment should be made to the department who incurred the costs.
Mr Jeffery said that effective training of magistrates and prosecutors would have to be done by the Department of Justice and Constitutional Development (DOJ&CD)
Ms S Sithole (ANC) said that her understanding was that any money paid to the State would normally go to the Central Treasury. This clause actually described for what purpose the payment would be made.
Mr Bassett agreed that the Department needed to revisit the wording to ensure that it was clearly conveyed.
Ms Schäfer made the point that the Department of Social development (DSD) might incur costs but would not necessary get them back.
Mr Jeffery said that if trafficking was an organised crime, then any proceeds should, in terms of POCA, be paid into CARA in any event. He questioned what then would be the purpose of having (2)(a), and wondered if it was not confusing the matter, because it referred specifically to the compensation. He agreed that the wording would have to be reconsidered. However, everyone was generally agreed on the principle that the State should be able to recoup care, transport, and return expenses of the victim, and asked if the Court would have to make an order to this effect.
Mr Hardaker said that there could be instance where POCA did not achieve everything that was desired. There might be difficulties in proving significant instrumentalities or proceeds of crime. This clause provided another mechanism that would force the accused, on conviction, to have to pay to redress the situation he had caused to the victims, for instance, by paying for their air ticket.
The Chairperson asked why subclauses (1)(d) and (2)(a) appeared to repeat the same principle. The first provision said that the court would make an Order for expenses in respect of care, transport, return or repatriation. However, the second provision related to the government department’s expenses, where CARA would make the order.
Mr Bassett said that clause (1)(d) specifically stated that it would apply if no order was made in terms of (2).
Ms Schäfer asked for further clarity as to the effect of a civil judgment order.
Mr Bassett said this referred to the Magistrate’s Court having jurisdiction, and it related to the execution of the judgment.
Ms Schäfer again questioned what the “jurisdiction” referred to.
Mr Swart explained that the case against the accused would be a criminal case. If the Court ordered that the accused must make payments, this order would have been granted in the criminal court, but it had to be converted to a civil court order, for the purposes of execution. The Clerk of the
Ms Schäfer said that such cases would likely be heard in the High Court, and therefore she did think it made any sense to have a reference to the “Magistrate’s Court”.
Mr Swart said that this was again for the purposes of execution. The Magistrate’s Court, in the area where the accused resided, would attend to this.
Mr Basset confirmed that this was quite a common provision in legislation, and confirmed what Mr Swart had said.
Mr Jeffery suggested that the Committee should leave out Chapter 7 for the moment. Some of it related to repatriation and deportation.
General Provisions: Clauses 36 to
Ms Lowesa Stuurman, Principal State Law Advisor, South African Law Reform Commission (SALRC), referred the Committee to page 68. She noted that there were no changes to clauses 36 and 37.
She noted that clause 40, dealing with national instructions and directives, was removed, and the contents of this were moved to the Chapter dealing with the administration of the Act. She would deal with those under that Chapter.
Ms Stuurman noted that the amendments to clause 38 were set out in the previous document.
Replacement of references to Intersectoral Committee
Ms Stuurman reminded the Committee that it had decided that there should no longer be a separate Intersectoral Committee. The references to the “Intersectoral Committee” had been replaced with a reference to “the Department” (of Justice & Constitutional Development) wherever these appeared. The Department of Justice would carry the functions of the proposed committee, in conjunction with other departments.
This resulted in changes to clause 39, and 41. On page 75 of the draft Bill, the heading had been amended to “Coordination of responsibilities, functions and duties relating to implementation of Act”. The references to the intersectoral committee were replaced in this clause. She noted that the departments and institutions listed here were exactly the same as those who would have served on the intersectoral committee.
Ms Stuurman noted that it was necessary for the Committee to decide whether the DOJ&CD would have to attend to the functions “after consultation with” or “in consultation with” the other departments.
Mr Jeffery said that some departments would be doing the work themselves so the appropriate wording on page 75, in clause 41, would be “in conjunction with”. The words “after consultation” implied that the DOJ would merely consult, then do the work itself.
Other Members agreed.
Ms Stuurman continued to point out the replacement of the phrase, pointing out that under subclause (2), the DOJ&CD would be responsible for the establishment of public awareness programmes. A similar substitution was effected in subclause (3).
Ms Stuurman noted that references to the “Minister of Women, Children and Persons with Disability” had been corrected in a number of places. In clause 41(2) the reference to “two years” for the tabling of a Framework was replaced with “one year”, after concerns were raised by the Committee. The Department had claimed that it would be able to approve and table a Police Framework document in one year.
Other technical changes had been made in respect of clause numberings, specifically in relation to clause 26(3), now noted as 25(4)(c), and deletion of references to clause 36, which would be renumbered as clause 44.
On page 77, a new clause 41(4) had been inserted for consideration. This was to the effect that the Minister had make regulations to establish and regulate the functioning of a mechanism to facilitate coordination of the new Act. The drafters believed that this would facilitate involvement of all departments.
At the bottom of page 77, she also noted that an option had been inserted for clause 43. All the previous provisions relating to the intersectoral committee had been deleted between pages 77 and 79.
Ms Schäfer thought that it was necessary to make provision for reporting obligations. She suggested that perhaps an annual progress report must be tabled on how the obligations were being implemented. This would cover basically what was set out on page 75, which encompassed the activities that would have been attended to by an intersectoral committee.
Mr Bassett then turned to the regulations provisions. The Committee had requested the drafters to move the enabling provisions around regulations to the back of the Bill. He noted that the drafters had identified some specific responsibilities for which the Minister “must” make regulations. As the Bill had been amended some responsibilities had emerged. The Bill now provided that the Minister, after consultation with all functionaries, “must” make regulations around the lodging and hearing of appeals, and the manner in which prosecutors must refer suspected child trafficking cases (where the prosecutor discovered that a child was a victim of trafficking).
Mr Jeffery asked if the appeal mentioned would be one relating to whether a person was a victim of trafficking.
Mr Bassett confirmed that it would.
Mr Jeffery thought that this was something that fell rather under the scope of the Minister of Social Development.
Mr Bassett said this could be changed.
Mr Jeffery reiterated that this was surely a Social Development decision, would involve MECs and had nothing to do with Justice functions. He agreed that what was set out under (c) was a matter for Justice, but that (a) and (b) would be for Social Development.
Mr Bassett pointed out that these subparagraphs were worded differently. The Minister “must” make regulations under (c) but “may” make regulations under (d). In other words, the mechanism in relation to the implementation was discretionary, but regulations must be made in relation to the prosecutors.
Mr Bassett continued that the remainder of the regulations provisions remained substantially as they had been worded previously. However, the Committee had requested the drafters to change the provision dealing with DSD, so that what was set out in the original (b), requiring the Minister to make regulations around the circumstances in which accredited organs would qualify for financial assistance, would be brought up and included in the other enabling provisions. He added that the original stand-alone provision noted on page 81 was now included as a new subparagraph (g). In addition, the drafters had deleted the previous subclause (5), which provided that a person contravening a regulation was guilty of an offence.
Mr Jeffery noted that in subclause (4), there was an option, of either making reference to 30 days or 60 days, within which the regulations would be “deemed” approved. He thought, and other Members agreed, that the period of 60 days was preferable.
Ms Schäfer said that (a) seemed to suggest also that if the Regulations were not submitted to Parliament, they would be deemed approved. This wording had to be adjusted.
Mr Bassett confirmed that he would correct this wording.
Ms Stuurman noted that clause 44(1)(a) had, in line with similar provisions elsewhere, substituted the phrase referring to the intersectoral committee with a reference to the DO&CD. Once again, the words “after consultation” were used, and she asked the Committee to consider whether this was appropriate, or whether it should read “in conjunction with”.
Mr Jeffery said that the previously-discussed clause set out matters that had to be done. In this case, there was only one thing that had to be done, namely, the issuing of national directives. For this reason, “after consultation” would be appropriate.
Mr Jeffery raised the point that the Director General for Justice and Constitutional Development would now bear responsibility for a number of matters that had nothing to do with justice. This would include referral of victims of trafficking to healthcare and psychological services. The other option might be for the Bill to give responsibilities to other Directors General, although it could result in confusion.
Mr Bassett said that originally the Bill had assigned different responsibilities to different people. However, during the public hearings, a suggestion was made that where insectoral issues were involved, they should be attended to by one DG only. He agreed that the Bill could specify that individual DGs should issue directives and instructions in relation to different matters.
Ms Schäfer thought that it was not desirable to spread this out too much, and suggested that perhaps the different DGs should compile their own directives, and refer them to the DG of Justice, for coordination.
The Chairperson thought this sounded reasonable.
Mr Jeffery read out some of the situations covered in the list, and noted that they were quite mixed in their intent. He thought that perhaps it would be wise to specify that directives on specified functions should be compiled by the different DGs, who must submit them to the DG for Justice, for final publication.
Ms Stuurman said that it would be difficult to link certain of these functions to just one department, as they were cross-cutting.
Adv Pieter du Randt, Deputy Director General: Court Services, DOJ&CD, confirmed that the DOJ&CD was the coordinating department in this Cluster.
Ms Schäfer agreed that the phrase “after consultation” made sense, but added that perhaps the clause should state more specifically that the Directors General should fulfil their responsibilities.
The Chairperson noted that regrettably the intersectoral committee appointed in respect of sexual offences had been lacking in its work, and he hoped that this work would be more successfully achieved. He summarised that the drafters should reconsider the wording and ensure that the various DGs would have to give their input to the DG of Justice.
Mr Jeffery noted that a list of responsibilities appeared on the next page, but he did not see any mention of the DG of Social Development. He also noted that perhaps the issues that presently appeared in clauses 44(1)(a)(ii) and (iv) should be put under a separate provision that referred specifically to the DG of Social Development. DSD would be responsible for the welfare (generally) of the trafficking victims.
Ms Tsholofelo Moloi, Director: Victim Empowerment, DSD, agreed that this was correct, and she would have no objection to the content of subparagraphs (ii) and (iv) being taken out of clause 44(1)(a) and put specifically under the responsibilities of the DG of DSD.
Ms Stuurman agreed that this would be done. She said that DSD would consult with other departments, such as health, on these matters.
Ms Stuurman then noted that on page 84, the references to the intersectoral committee had, in clause 44(1)(c) been replaced with the provision that the functionaries must provide information on the directives to the DG of Justice, as the latter may determine.
Mr Swart asked what “determine” would mean, and whether this would be done by a formal instruction.
Mr Bassett confirmed that this would not be done by way of regulation, but would be something said in a meeting or contained in a letter.
Ms Schäfer asked why this provision was included.
Mr Jeffery agreed, saying that the Bill should not over-regulate the method in which matters happened. If nothing was done, then this would have to be reported to Parliament. He also asked whether a failure of functionaries to provide the information would be criminalised.
Mr Bassett said that this provision was included in the original Bill, but the drafters could take it out if the Committee wished.
Members confirmed that they did not want this provision to be included, as it was attempting to micro-manage.
Ms Stuurman noted that the word “witnesses” was now used in both subclauses 44(6) and (8), to bring this in line with section 154 of the Criminal Procedure Act. Subparagraphs (i) and (j) had been moved across to the Regulations, as previously mentioned. Subclause (8) also now contained a suggestion to refer to “social context training”.
Report back on assignment of powers and duties
Ms Stuurman reported back to the Committee that the South African Police Service (SAPS) had questioned the clause that had dealt with delegations of powers and assignment of duties, because it noted that SAPS already was covered by other legislation on this topic. The Committee had asked the drafters to look into whether other departments had similar legislative provisions around delegation of duties.
The Public Service Act (PSA) did not deal with these matters generally. The DSD also did not have specific legislation, but would like to see something in the Bill to deal with this. The SALRC had not had time to consult with the other departments, and she suggested that she could give more information on this later.
Clauses 45 to 47
The Chairperson noted that clause 45 to 47 would be flagged for a further report back and consideration by the Committee.
Clause 49 on page 91
Mr Bassett noted that the transitional provisions were originally contained in clause 24, but the Committee suggested that they be moved to the end of the Bill. The DSD had raised some concerns about what would happen if certain organisations had not been accredited by the time that the Bill came into effect.
Mr Mandla Mathaphuna, Director: Legal Services, DSD, said that there was a challenge in how matters would unfold after promulgation of the new Act. The Interpretation Act allowed for the Minister to give directives to implement some of the provisions that were linked to the operation of the Act, even before that Act official commenced. At the moment, organisations who rendered services to victims of trafficking were funded under general provisions of the DSD, although they were not actually accredited as this Bill had not been passed. DSD had suggested that the Minister could issue a Ministerial Determination that acknowledged or recognised the services rendered, pending their formal accreditation.
Mr Jeffery agreed that clause 49 was problematic because the Act had not come into effect. He was not sure whether these provisions could be enforced. He thought that something along the lines of what was set out in subclause (2) would be needed, in order to legitimise the organisations. DSD would have to decide what would happen between now and then. He agreed that perhaps recognising the services provided, by way of a Ministerial Determination, was one option.
Mr Bassett agreed that if necessary section 14 of the Interpretation Act could be used, but Mr Jeffery’s suggestion to determine the accredited organisations in the meantime was a more practical approach, and then it would be necessary to retain clause 49(2).
Ms Schäfer said that there still must be an obligation to apply for accreditation, so that subparagraph (b) would have to remain.
Mr Jeffery said that then a new (c) must be written in, and that clause 49(2)(b) must be rewritten to provide that every organisation that already existed and was accredited could continue to operate, but must apply for determination within a certain time. Those organisations would know when the Act was about to come into effect.
Mr Bassett noted that the Committee had now considered the Bill in full, apart from the Home Affairs issues. He asked whether the process with Home Affairs would be driven by the Committee, through the Minister, or whether the DOJ&CD should pursue it.
The Chairperson said that the Committee would take this up. He thanked all who had been present for their input.
Ratification of Legal Aid Guide (LAG): Legal Aid South Africa (LASA) presentation
Judge Dunstan Mlambo, Chairperson, Legal Aid South Africa, gave a broad overview of the mandate of Legal Aid South Africa (LASA). He noted that there was a resource challenge at all offices. He cited an example from the Western Cape, where there were only 12 representatives from LASA to cover the High Courts, as opposed to 39 prosecutors from the Department of Justice. It was small wonder that staff struggled to remain motivated. At some point this ongoing challenge would have to be confronted.
Judge Mlambo noted that LASA still applied the means test, but assured the Committee that nobody, even if s/he failed the means test, would go without legal representation. He noted that discussions had been held with the Minister and Department around the amendments to the Legal Aid Guide (LAG). He summarised that the LAG was basically divided into three parts. The amendments were set out on slide 6 (see attached presentation for details). The mandate of LASA was now being extended so that it could deal with cases related to reckless and negligent driving, but legal representation before an administrative tribunal was excluded. There was still a restriction on the number of civil matters that LASA could handle. The means test was being raised to income of R5 500 per month, and the net permissible fixed asset values had also been raised. Regional Operational Executives were now given a discretion to approve fully subsidised legal aid in certain cases where the means test income was exceeded. There was a further stage added into the section 3B process, to question means, following the cases of LASA v Porrit and Bennett. Powers were being granted to the Justice Centres to approve judicare. There were also additional provisions around the employment of expert witness. In future, judicare practitioners would be contractually bound to submit accounts in three months, so that they were finalised in four months, and a period of three months was allowed to dispute the account. The consent of applicant and practitioners would be sought to conduct quality control tests in judicare cases, to answer the complaints that had been made around judicare practitioners, and to institute standard quality controls for all. The LAGA also clarified the tariffs for civil and criminal matters, and policy and procedure provisions were incorporated into the main body of the LAG.
Mr Patrick Hundermark, Legal Development Executive, expanded further on the provisions, and noted that the Committee had been provided with the draft LAG, as well as a two –page document setting out, in tabular form, the amendments approved in 2008, the current provisions, and proposed provisions.
Mr Hundermark noted that those charged with reckless and negligent driving were often sentenced to imprisonment of more than three months. In the District Courts, LASA had a list of cases that it would cover, but there was discretion also to grant legal aid in cases where direct imprisonment could be imposed. In the Regional and High Courts, LASA would be able to cover all matters.
Mr Hundermark noted a slight increase in the means test, guided by levels of inflation and taxation. The limits for assets, where no immovable property was held, was raised to R100 000. Immovable property limits were also raised. He then explained that the means test would be the first step in deciding if someone was indigent, and the Constitution required LASA to determine whether a person was able to afford the cost of his/her own legal representation, giving consideration to their resources. However, it accepted that more complex and longer trials could also be unaffordable for those who did not satisfy the means test, and that was why a contribution scheme had been introduced, specifically for criminal matters, so that the accused could be assisted if a contribution was made by that accused. This was set out in Paragraphs 17 to 19 of the tabled document. Partially subsidised legal aid was set out from page 20. There was now a discretion built in for Regional Executive Officers in the Justice Centres, to approve matters if the means test was exceeded by more than R1 000, or where assets exceeded the prescribed levels. Over and above this, the matter must be referred to a Constitutional Case Management Committee (CCMC), who would consider the broad factors and decide if there should be contributions. This CCMC would also keep track of the costs of the ongoing cases, and decide upon their management.
Mr Hundermark said that in two cases, LASA had been ordered to grant legal aid, but had taken the matters on appeal. The rulings of the Supreme Court of Appeal (SCA) in LASA v Porrit and Bennett set out a number of important issues. In this matter, more than R21 million had been spent by the applicants in attempting to avoid trial. The Court had ruled that the lifestyle of the applicants did not exhibit the requirements of indigence, and an obiter remark was made on the 3B procedure, that applicants could be called in and cross-examined on their circumstances. In the Western Cape, another applicant had R200 million of assets in a company but had nonetheless applied for legal aid. These were illustrative of the need to change the policy and to introduce a fourth step allowing for a subpoena of the applicants, witnesses and documents.
Mr Hundermark noted that previously appointment of judicare practitioners was dealt with at central level, but the system had now developed to the extent that this function could be delegated to the Justice Centres, within certain ambits.
Mr Hundermark also noted that a complaint in the past by accused was that LASA did not always allow for employment of expert witnesses, but the policies and budget were now in place, and all practitioners knew where to access it. This was clarified under item 42.
Mr Hundermark then expanded on the provisions around accounts. In the past, attorneys had often been slow to submit their accounts and that impacted upon the LASA’s ability to maintain accurate financial records, and that was why, firstly, three-monthly reports were now required on the status of cases. Secondly, he noted that questions had been raised as to whether it was fair to prescribe that accounts must be submitted for payment within four months. However, he pointed out that this related to the contract between practitioner and board, did not affect the accused client, and that the practitioners were fully aware of the terms of the contract they signed with LASA. There was a safety mechanism for a discretion, should there be special circumstances.
LASA had always conducted quality control checks on its internal practitioners, both through self-review, and via the internal audit unit, who reviewed performance. LASA had consulted with the advocates’ and attorneys’ professions and was now extending this also to judicare practitioners, as outlined by Judge Mlambo. The attorney/client privilege should also extend to LASA so that LASA could not be subpoenaed to give evidence. This was only in respect of finalised files, at this stage, but LASA also intended to provide for this in the new Legal Aid Amendment Bill.
Legal aid tariffs in civil and criminal matters were dealt with in item 66. There would now be one specific cost line. Increases had been effected across the board, with an increase of 5% from 1 April 2010, and a further 4% from 1 April 2011. This was intended to keep up with inflation.
The last amendment was in relation to Annexure O, which dealt with how the LASA contracted with practitioners. They would need to apply for accreditation and the requirements were set out, and all practitioners would be aware of what was expected of them. Finalised files could be forwarded for review to LASA and there were terms and conditions specified.
Mr Hundermark finally noted that, other than the addition of reckless and negligent driving matters, the LASA coverage in criminal matters remained unchanged. In civil matters, it would not cover certain administrative hearings, except where these were taken on review.
Mr Swart asked a general question about progress on the Legal Aid Amendment Bill, which was supposed to be submitted to Parliament in September, and which might address the broader issues on staffing and budgets raised by Judge Mlambo.
Ms Vidhu Vedalankar, Chief Executive Officer, LASA, noted that the DOJ&CD had indicated that this Bill was scheduled to be submitted in 2012.
Adv du Randt, DOJ&CD representative on the Legal Aid Board, said that the DO&CD hoped to finalise discussions on the Bill in October, and deal with it early in the next year. The legislative programme for this year had been very full.
Mr Swart was shocked to hear about the Porrit and Bennett case. He asked if there were any further developments on this.
Ms Vedalankar said that the applicants were apparently bringing an application to court for the prosecutors to be removed, on the grounds of bias. Apparently one of the Trusts connected to the applicants had released funds for this application.
The Chairperson added that the applicants were alleging that the entire prosecution team and Bench were tainted and that the prosecutors and South African Revenue Service were involved in a cover-up.
Mr Hundermark noted that the SCA still stood, as the applicants had not received leave to appeal to the Constitutional Court.
Ms Schäfer asked if LASA had asked for punitive costs.
Judge Mlambo said that it had, but these were not awarded, and in any event the LASA would have had to decide if it was simply throwing good money after bad.
Mr Hundermark added that the applicants held nothing in their own names, and recovery of costs was an academic issue since their entire financial situation was structured around Trusts owning their dairy farms.
Mr Swart commented that the continuous attempts to delay were tied in to the questions about delays raised on the Constitution 17th Amendment Bill.
Mr Swart asked if the LASA’s provision that accounts must be finalised within four months was essentially suggesting that accounts would be prescribed after that period, because he thought that the Prescription Act already was clear on this point.
Ms Schäfer thought that LASA could not contract out of what was provided for in legislation, and thought that this could be challenged. She asked if there were similar obligations upon LASA to pay its fees within a certain period, as this had been problematic in the past.
Judge Mlambo confirmed that there was no attempt to “contract out”. However, he pointed out that from a practical point of view, LASA was required to link its payments to finalisation, and this was one aspect queried by the Auditor-General. At present, LASA had no backlogs in respect of payments, and was paying its accounts within 30 days, as required by the Public Finance Management Act (PFMA). LASA notified that practitioners that if they did not submit their accounts within three months, thus allowing for finalisation within four months, then the matters would be recorded as “closed” files. If the account was submitted later, certain procedures would have to be followed, including resort to arbitration. This was merely a control mechanism.
Mr Hundermark added that the Constitutional Court had considered this point, and pointed out that insurance industry imposed similar contractual terms, such as a claim having to be filed within 30 days, and the medical aid industry also imposed similar restrictions. The relationship between LASA and attorneys was purely contractual. None were obliged to take on legal aid work. This provision would not affect anyone who had a claim outside the context of the contract. He emphasise that LASA had the obligation, under the PFMA, to effect payment of accounts within 30 days. While he acknowledged that there had been problems in the past, control sheets were now issued.
Mr Jeffery noted that the LAG contained references to the “2010 LAG”, although the previous Guide had been adopted in 2008 and came into effect in 2009. He asked why the LAG was not revised annually.
Ms Vedalankar said that it was reviewed annually, but was not always processed in the same year.
Mr Jeffery said that the acknowledgements needed to be revised.
Mr Hundermark took note of his point, and said this would be corrected.
Mr Jeffery noted that the Committee had complained in 2008 that it was effectively “rubber-stamping” the LAG. He wondered if the Amendment Bill would change that position, and said that it would be useful if, in future, the Committee received a draft of the LAG before it was officially revised. Although Parliament was given the power to “approve” in many instances, it would like to be able to make input.
Mr Hundermark said that the involvement of the Committee would be brought into the Amendment Bill.
Mr Jeffery noted that the means test provided that anyone who was receiving a grant from South African Social Security Agency would automatically qualify for legal aid. He pointed out that many of the SASSA grants were obtained fraudulently.
Mr Hundermark responded that while the LASA would institute a number of checks in respect of larger matters, it could not follow up on every matter as the cost of investigating whether the SASSA grant was genuine, especially since LASA did not have the necessary information itself, would outweigh the cost of granting legal aid, especially where LASA’s own practitioners handled the case.
Mr Jeffery questioned the principle that an applicant for legal aid who owned property must be living in that property. It was an individual’s own choice – and often was dictated by other circumstances – whether they should live in their own property or rent it out because they had no other income. It did not seem to be fair that a person should be excluded from receiving legal aid on this ground.
Ms Schäfer agreed, saying that she knew of a woman who had to rent out her property in order to support her children, but who was now facing a potential custody dispute for which legal aid would be required.
Mr J Sibanyone (ANC) commended LASA for its growth, but was concerned whether applicants were informed of their right to appeal, when they were told that they did not qualify under the means test. One applicant in his constituency, who had approached LASA in relation to her illegal eviction, was apparently told simply that she did not qualify.
Judge Mlambo said that he understood the concerns of Members, and LASA would be prepared to give reconsideration to this. LASA had been concerned about the possibility of abuse, but this had to be weighed against the risk of penalising people unfairly who were not living in their own property. He said that Mr Sibanyone’s question was linked to the others, and confirmed that whenever applicants were told of the refusal of an application, they were also advised of how they could take the matter further. The CCMC also reviewed matters, so there were safety mechanisms built in.
Mr Hundermark added that Annexure L of the LAG must be provided to anyone whose application was refused, and this set out that there could firstly be an appeal to the Head of the region and then to the National Operations Executive.
Mr Jeffery enquired in what languages the LAG was published. He said that, at the very least, those forms such as Annexure L, which gave advice to applicants, should be made available in the language of the area.
Mr Hundermark said that the LAG was only presently printed in English, but he agreed that anything applying to clients should be available in the languages of the area.
Mr Jeffery commented on Judge Mlambo’s point about the workload of the professional assistants. A budget review process had resulted in extra money being made available to LASA for the next year. He suggested that stronger motivations for extra funding should be put forward, perhaps including comparisons between staffing at the NPA and LASA.
Judge Mlambo thanked the Committee for this advice. LASA had been advised of the budget cuts and had geared its strategic plans around that, to ensure that it would not take on more than its budget would allow. For this reason, there were no immediate plans to increase the staff numbers. The twelve LASA professional assistants were probably covering about 80% of cases in the High Court. He appreciated the efforts of this Committee to get additional funds and mentioned that these had been used to increase the civil coverage. He would make further motivations.
Adv du Randt agreed that there was not equity in capacity, and said that although additional appointments had been made, there was still a need for further work on this. Cluster budgeting was being addressed with National Treasury.
Mr Jeffery hoped that the appointment of a media officer would result in greater publicity. He suggested that LASA should make arrangements with the media to interview the Chairperson of LASA during budget review hearings, and could take a leaf from the AFU’s publicity unit.
Mr Jeffery asked how the LAG guide was made accessible; whilst he realised that it was really intended for practitioners, he wondered if the public could access it, and in what languages it was printed.
Judge Mlambo said that the LAG would be made available to a wide spectrum of courts, libraries, the Law Societies, clinics and universities, and it was also made accessible online, so LASA tried to ensure that a spectrum of people who may need the LAG could access it.
Mr Hundermark added that the People’s Annual Report contained a very simplified summary of the LAG, in about two pages. About half a million copies of the People’s Annual Report were distributed widely in most areas.
The Chairperson suggested that perhaps Parliamentary Constituency Offices could also assist with distribution of the pamphlets; the Committee would discuss that.
Ms Schäfer wondered why LASA limited the civil matters. She enquired whether, in principle, legal aid would be provided to habitual criminals. She also wondered why LASA did not cover personal injury matters, saying that many of the people who needed to pursue these matters had huge medical costs and were disabled. Many attorneys did not have money to front costs for their clients, and not all these matters would be taken as contingency matters.
Mr Swart also wondered if LASA could not supplement its income by taking on more civil matters, and perhaps take some matters on a contingent basis. In civil cases, LASA used to recover costs and 10% of the capital award, and this would help to supplement its income. He understood the need to balance the number of cases, but reiterated that taking on some large civil matters on contingency would not assist with funding.
Ms Vedalankar noted that the Constitution required LASA to provide more assistance in criminal than civil cases.
Judge Mlambo agreed on this point, but said that many practitioners in the private sector were doing personal injury cases on contingency. Although LASA did accept some cases, primarily to ensure that its staff received exposure, there had been complaints from private practitioners about taking their work away. A fine balance was needed on this.
Mr Hundermark confirmed that the LAG did contain a provision for cession of costs, even if litigant did not wish to pursue the costs. This was likely to be carried over also to any new legislation. There were sliding scales applied for awards even when matters were handled by internal practitioners, specifying a 5% award contribution between R20 000 to R100 000, and then 10% recovery for amounts in excess of R100 000. One of the reasons why the handling of civil cases had dropped, and had even been excluded at one point, was that about 95% of cases were unsuccessful, and therefore not lucrative. The question of how any income would be dealt with must also be debated, as generally it would have to be declared and paid over to National Treasury.
Ms Schäfer was concerned about the stage 4 process, wondering if this was not attempting to prescribe to a Court what it should do.
Judge Mlambo responded that it did not amount to prescribing to the Courts, who had themselves stated in the past that they would not be bound by directions on procedural matters. This stage was simply providing that the courts should become more involved in getting more information, to answer concerns that not all relevant information was provided in the past. This provision would actually assist LASA in getting the information it needed. The Heads of Courts had received this proposal well, and he believed that it could streamline the process.
Mr Hundermark added that the Court would direct the inquiry. The SCA judgment already set out how it envisaged that inquiries should be conducted, and stage 4 was simply based on that.
Prof G Ndabandaba (ANC) noted that his constituency was a deep rural constituency and he wondered if knowledge of LASA extended to those areas. He believed that there should be a publicity drive. Many people were suffering but did not know of the services they could access.
Judge Mlambo answered that all Justice Centres had initiatives to reach other areas, although he conceded that even more areas could be covered. He suggested that LASA should discuss the matter with Prof Ndabandaba, to ensure that people in his area were informed.
Mr Sibanyone thought that all reports by practitioners should be checked, and should contain specifics on any delays, such as continuous postponements.
Mr Jeffery pointed out that the Child Justice Act had come into effect since the last LAG was published, but the revised LAG did not contain any reference to it.
Judge Mlambo conceded that there were no specific references, but said that children were identified as a vulnerable group and there were children’s units.
Mr Hundermark added that there was no limitation on the LASA accepting either Road Accident Fund or child work, so there were references to children in the LAG, in clause 4.18. Although there was no specific reference to the Child Justice Act, the general basis on which children would qualify would be applied and no child was able to refuse legal aid. There was no need to amend the LAG. Preliminary Inquiries were covered.
Mr Jeffery was not quite satisfied on this point, pointing out that the Child Justice Act gave greater rights of representation to child accused. There was a list of offences, but there was no right to representation in Preliminary Inquiries mentioned specifically, and this must be clarified in future. Although the LAG contained several references to the Children’s Act, the Child Justice Act was not mentioned.
The Chairperson agreed with Mr Jeffery.
Mr Hundermark again reassured the Committee that a child would never be refused legal aid, but said it would be possible to amend the LAG to make this quite clear.
Adv du Randt said that it was possible to set out, more clearly and in plain language, the provision of legal aid to vulnerable groups, and this could be dealt with more substantially in the next LAG.
Adv L Adams (COPE) asked if there was a system that reviewed whether judicare matters were allocated properly.
Mr Hundermark said that a computerised system was applied for judicare. The practitioners were firstly ranked, in terms of black empowerment and employment equity, both by individual and firm, when accredited. It was not the number of instructions that was counted, but the value of the work, in terms of the amount paid by LASA. Instructions to practitioners had to be balanced. The system would select the top four practitioners and send out automated SMSs asking if they were available, and if the first ranked answered within 24 hours, then the instruction would be ranked. If this did not happen, then the instruction would go to the next highest practitioner who accepted the instruction first. This was an auditable system, and deviations could be picked up. It ensured that allocations were not made to any specific practitioners.
Judge Mlambo thanked Members for their input and agreed that the changes would be factored in to the next LAG. In the meantime, a circular could be sent out by way of a LASA Circular, particularly dealing with the Child Justice Act.
Committee’s Draft Report on Mutual Legal Assistance Treaty and Extradition Treaty with Iran
The Chairperson said that Members had received a copy of the Committee’s Draft Report on the Treaty for Mutual Legal Assistance with Iran, and he Extradition Treaty between South Africa and Iran. noted that the Minister had advised that South Africa was not under an obligation to ratify every single treaty, and that was something that the Committee should bear in mind in future.
Ms Schäfer asked whether any treaty could be changed, and to what extent.
Mr Jeffery said that in general, Parliament was restricted to either accepting or rejecting a treaty. However, in some cases it could note an exception.
Mr Swart said in respect of a number of treaties, such as United Nations treaties, countries did reflect reservations on certain clauses.
Mr Jeffery noted that agreements of a technical or administrative nature did not have to be approved. The negotiations and signature were the responsibility of the Executive. There were provisions for exceptions where there was a general treaty.
He said that these particular treaties with Iran had contained pro-forma wording. He pointed out, in respect of the objections raised during the Committee’s deliberations, that a number of countries could impose the death penalty, but in America case law stated that there should not be extradition unless the requesting state gave an assurance that the death penalty would not be imposed. The Committee had recommended that the Department should review the extradition on this basis.
Mr Swart noted that there was also concerns about monitoring. Iran, in particular, had a shocking human rights record. The Departmental representative had stated that there was no mechanism in place to investigate the treatment of a person who had been extradited.
Ms M Smuts (DA) asked if the Department would check on this before extraditing anyone.
Mr Jeffery noted that a Constitutional Court case had, since the time that this treaty was signed, confirmed that no person would be extradited if these guarantees were not given.
Ms Schäfer noted that the concern about death penalties was probably covered, but the imposition of penalties such as removal of hands or eyes was not. She thought that without both a guarantee and monitoring mechanism, this treaty could not be approved.
The Chairperson referred to the option of “extradition may be refused” in certain circumstances.
Mr Jeffery thought that a person could oppose the extradition request if s/he was to be removed to a country that did allow for removal of body parts as a punishment.
The Chairperson noted that other concerns raised in this report included the inordinate delay in bringing the matter before the Committee, the need for Parliament to be involved prior to the signature of these treaties, and other matters just discussed.
Ms Christine Silkstone, Content Advisor, Parliament, said that it was possible to strengthen the references in paragraph 4.
Mr Jeffery noted that not every extradited person would need to be monitored. However, he thought it should apply in cases where requesting countries imposed practices that may be regarded as cruel or inhumane. Extradition was a court process, and a person whose extradition was sought by Iran would be able to oppose the application for extradition, and could probably get a Court order as to the circumstances under which that person must be held.
Mr Swart said that this was a filter, but the Executive official would need to take and enforce the final decision. In South Africa, it was usually the decision of the Minister that would be taken on review, to delay the proceedings.
Mr Swart noted that “monitoring” related to the imposition of the punishment, but there may well also be concerns about the conditions of detention, including torture that was well-documented by Amnesty International in many countries. He thought that paragraph 4 must be extended even further to cover conditions of detention.
Mr Jeffery had reconsidered the matter, and thought that this should be dealt with on a case-by-case basis. He suggested that the wording should refer to “monitor the treatment”, so that it would be wider.
Mr Jeffery also thought that South Africa should revise its treaties to ensure that rendition was not allowed.
Members briefly discussed whether the position of minority parties should be recorded in the Report. The Chairperson, after checking, said that the Rules appeared to be silent on this point.
Ms Smuts indicated that the DA would be voting against the adoption of the extradition treaty and could give reasons in the House.
Ms Schäfer noted that the DA did not have any problems with the Treaty for Mutual Legal Assistance in Criminal Matters Treaty.
Mr Jeffery thought that the paragraph in the Report dealing with the two treaties should be separated into two, to make a clear distinction between the two.
Members voted unanimously to adopt the Treaty for Mutual Legal Assistance.
On the Extradition Treaty, five Members voted in favour of adoption (ANC and COPE), and three against (DA and ACDP).
Members voted to adopt the Draft Report, as amended.
Committee’s Draft Report on meeting with Magistrates’ Commission
Mr Jeffery noted that the first part of the Report was descriptive. He had raised concerns with the inordinate time taken between magistrates being charged and being finally suspended. Point 9.2, on page 7 of the draft Report, made a point that the disciplinary enquiries would not be postponed until the criminal matters were finalised. He had asked for that to be checked. Later on, however, in 9.4, the point was made that notwithstanding the comments of the Magistrates’ Commission, two matters were postponed awaiting the outcome of an appeal. He asked whether other Members also recollected that the Commission had indicated that in future it would proceed with disciplinary matters even before finalisation of court cases.
The Chairperson recalled that the Magistrates’ Commission had said that it would, as a matter of policy, prefer to wait for the court cases to be concluded.
Ms Schäfer agreed that this was stated as a general policy, because in some cases witnesses might be affected, or evidence compromised, by the prior holding of a disciplinary matter.
Mr Swart recalled that in some cases, prosecutors had requested that the disciplinary matters should not proceed before the court cases, because this could compromise the cross-examination in the criminal matter. He reminded the Committee that this also applied to the Judicial Services Commission. However, he made the point that if the matter was an appeal, the record was already complete, and this point should be discussed when the Committee next met with the Magistrates’ Commission. He thought this point should be included in the Report.
Mr Jeffery suggested that paragraph 9.2 should then refer to “a policy decision” to make it clear that this was not a general decision. In respect of 9.4, he thought that there should be reference to the appeal, and a comment that these matters took place in June, after the March policy position was adopted.
Ms Schäfer said that even if it were to be argued generally that evidence could be compromised, no evidence would be led in an appeal process.
Ms Schäfer noted a typographical error in paragraph 9.2. She questioned the reasoning behind paragraph 9.8, and suggested that the next date for the meeting should be mentioned.
Mr Swart said that 9.8 referred to cases where disciplinary action was instituted against a magistrate, who would then resign and would be appointed as an Acting Magistrate in another division. This was clearly wrong.
Mr Jeffery suggested that the Committee must include a comment that screening mechanisms should be used. He added that the Department of Police followed a different procedure, where officials could be fired even prior to the criminal action being concluded. He agreed that the Report should note that the Committee would be meeting again with the Magistrates’ Commission on 17 September.
Members agreed to adopt the draft Report, as amended.
The Chairperson noted that the following day’s meeting with the Public Protector would be postponed. The Committee’s draft report on the revised Legal Aid Guide would be considered instead.
Mr Jeffery said that, following concerns, it appeared that the Minister was withdrawing the Code of Administrative Practice, and would then bring it forward informally to the Committee again for comment before it was formally tabled. He wondered if a briefing could be arranged for the following day on this.
Ms Smuts requested that the Committee should arrange a meeting with the Minister, as there was a need to find a way to deal with the tensions between the National Director of Public Prosecutions and AFU. The Minister had assured the Committee that these units remained the pillar of the fight against corruption, and the President also said that it would not be disbanded.
Ms Schäfer added that it had recently been revealed that the Public Protector apparently did not have sufficient funding to continue its investigations, and the Committee needed to find out what the constraints were. She was not sure if this Committee could make recommendations to National Treasury.
Ms Smuts asked about the progress on the Constitution 18th Amendment Bill.
Mr Jeffery noted that the Minister and MECs for Education wanted the Further Education and Training Amendment Bill (the FET Bill) to be implemented before the start of the new financial year. In future, FET colleges would be an exclusive national legislative competence, but there were concerns that if the Constitution 18th Amendment Bill was not passed first, there would be a lacuna and provinces could legislate on them differently. The NCOP needed a full term to deal with this. The deadline for public submissions was 13 September, and the hearings were set for the day after. New wording had been proposed by the Department of Higher Education and Training. There was another problem with the definition was of “school” and a need to avoid early childhood development also falling under a national competence.
The Committee agreed that it must find slots to discuss the Protection of Personal Information Bill.
The Chairperson, on request from Mr Jeffery, asked the DOJ&CD to report back on the Cyber-Crime Treaty.
Mr Jeffery noted that the President had approved a draft proclamation in relation to judges’ and magistrates’ salaries, but both Houses had to approve this.
The meeting was adjourned.
- Amendments to 2009 Legal Aid Guide as approved by the board of Legal Aid South Africa
- Summary of Proposed Amendments as Approved by the Board of Legal Aid South Africa
- Legal Aid South Africa: Ratification of Legal Aid Guide
- Proposed amendment of National Prosecuting Authority on clause 29
- Working draft of Prevention and Combating of Trafficking in Persons Bill
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