Reinstatement of Enrolment of Certain Organs of State Bill; Institution of Legal Proceedings Against Certain Organs of State Bil

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMETTEE.
22 May 2002
REINSTATEMENT OF ENROLMENT OF CERTAIN ORGANS OF STATE BILL; INSTITUTION OF LEGAL PROCEEDINGS AGAINST CERTAIN ORGANS OF STATE BILL; EUROPEAN CONVENTION ON EXTRADITION; SADC PROTOCOL ON CORRUPTION

Chairperson: Adv. De Lange

Relevant documents:
Reinstatement of Enrolment of Certain Legal Practitioners Bill [B6-2002]
Institution of Legal Proceedings Against Certain Organs of State Bill
Extradition and Mutual Legal Assistance in Criminal Matters Treaties: Position at 22/02/02 (see Appendix)
Interception and Monitoring Bill as at 24/05/2002

Members present:
Adv. De Lange (Chairperson / ANC)
Mr. Landers, LT (ANC)
Mr. Magwanishe, G (ANC)
Ms Mahlawe, N (ANC)
Mr. Molewa, B.G (ANC)
Dr. Delport, J.T (DP)
Adv. Schidt, H.C (DP)
Mzizi, M.A (IFP)
Mrs Camerer, S.M (NNP)
Mr. Maseka, J.T (UDM)

SUMMARY
The Reinstatement of Enrolment of Certain Legal Practitioners Bill was voted on and passed with amendments. The Committee finalised and informally approved the NCOP proposed amendments to the B version of the Institution of Legal Proceedings against certain Organs of State Bill which isto be considered by the NCOP Select Committee. The Committee voted in favour of the SADC Protocol Against Corruption and the European Convention on Extradition.

MINUTES
Reinstatement of Enrolment of Certain Legal Practitioners Bill
Adv. De Lange noted that the Bill is aimed at providing the reinstatement of legal practitioners who were struck off the roll of advocates or attorneys as a result of their opposition to the previous political dispensation. He showed that while the bill was good, it contained some wording problems that needed to rectified.

The Committee went through the proposed amendments below and agreed to them:

Preamble
On page 2, omit all the words in the current preamble and substitute with:
WHEREAS it is appropriate to honour the memory of those legal practitioners who made a contribution to the previous political dispensation of apartheid; or who assisted persons who were so opposed, and who ere struck off the roll on account of such opposition or assistance, either directly or indirectly:

AND IN ORDER TO redress the injustice of the past by restoring the professional status of those legal practitioners who were so removed during the apartheid dispensation.

Clause 1
1. On page 2 of the bill, in line 6, after 'prior to' to insert '27 April'

2. Still on page 2, line 7 to omit all the words from 'upon' up to and including 'person' in line 14 and to substitute:
Upon application brought by a member of such deceased person's family or, after consultation with the deceased person's family, by-
(q) the General Council of the Bar of South Africa;
(b) The Bar Council concerned;
(c) the Society of Advocates concerned;
(d) the Law Society of South Africa;
(e) the law society concerned; or
(f) any other interested person.

3. On page 2, in line 17 and 18, to omit 'commitment o resisting the apartheid regime' and insert 'opposition to the previous political dispensation of apartheid'.

4. On page 2, in line 8, after 'political' to insert 'constitutional'

5. On page 2, line 18, after 'republic' to insert 'or constitutional'

6. On page 2, in line 23 and 24, to omit, 'cause the particulars of the order to be entered on the roll of advocates' and to insert:
'enter a reference to that order opposite the name of the person in question'.

7. On page 2, line 25 and 26, to omit, 'restore the mane of the person to the pay roll of attorneys' and to insert:
'enter a reference to that order opposite the name of the person in question in the registers kept by him or her for that purpose and forward certified copies of that order to the registrar of the other High Court and the registrars of deeds appointed in terms of the Deeds Registrar At, 1937 (Act No, 47 of 1937), who, in turn, must enter a reference to that order opposite the name of the person in question in the registrars kept by them or that purpose'

New clause
The committee agreed that the following be a new clause:

Names of reinstated persons to be submitted to Parliament
2. The cabinet member responsible for the administration of justice must cause the name of any person who was reinstated to the roll of advocates and attorneys in terms of section 1 to be submitted to Parliament.

Clause 2
On page 2, line 28, after 'Certain' to insert 'Deceased'

Long title
On page 2, line 2, after 'enrolment of' to insert 'certain deceased'
On page 2, line 3, after 'opposition to the' to insert 'previous'

On page 2 of the bill, line 4, to omit 'and who have since passed away' and to substitute 'or their assistance to the person who were opposed to the said apartheid dispensation'

The Committee agreed to the following resolution:
"The Committee resolves further that the Minister of Justice and Constitutional Development be requested to cause his Department, in conjunction with relevant role players, including representatives from the legal profession, to revert to the Committee within three months from the date of adoption of this report, on-
- the manner in which; and
- the establishment of a mechanism through which,
the names of persons who were re-instated either to the roll of advocates or roll of attorneys in terms of the Reinstatement of Certain deceased Legal practitioners Bill, could be disseminated as widely as possible, in an effort to honour the memory of the persons involved as far as possible".

Adv De Lange gave the Committee an opportunity to raise any concerns and to generally discuss about the bill.

In reply to Mr Mzizi (IFP) asking if the families of those legal practitioners were going to benefit from these arrangements, the Chair replied that their families would benefit now that they are returned to their former position.

Institution of Legal Proceedings against certain Organs of State Bill
This Bill was passed by the National Assembly on 28 September 2000. The Bill aimed to harmonise the period of required notice and prescriptions. However it failed to harmonise because it applied only to delictual liability. It needed to apply to any act that included delictual, contractual or any other liability. Hence the definition of debt had to be amended to cater for all situations (see latest draft of Bill). . The Chairperson commented that this Bill had been extremely technical and thus the delay. The Committee finalised the NCOP proposed amendments to the B version of the Bill which will be voted on by the NCOP Select Committee.

Mr Labuschagne went through the changes to the Bill which were accepted by the Committee.

Ms N Mahlawe (ANC) asked what could happen in a situation where a person discovers the facts of the issue after twelve years.

The Chairperson indicated that the notice period has been extended from 3 to 6 months after the first day of the knowledge of the facts which in this case was twelve years.

Interception and Monitoring Bill
In answer to the Chairperson asking the departmental drafter if he had completed his work on the Interception and Monitoring Bill, Mr. Labuschagne noted that he was working on the final two chapters of the Bill.

European Convention on Extradition Treaty
The committee touched on some aspects of this treaty such as the extradition of criminals to their home countries.

Dr. Delport (DP) commented that while he accepted the purpose of the treaty, he wondered if by protecting the criminal on the basis that they might be put to death in their home countries, was this not welcoming international criminals?

The Chairperson reminded Dr. Delport of Mr. Mohamed's case who was extradited to the US. The Constitutional Court blamed the government for the action of extraditing Mr. Mohamed to the US where he faced the death penalty.

M. Landers indicated that the crime of Mr. Mohamed was not committed in the US and therefore there was no need for South Africa to extradite him to the US.

The Chairperson replied that though the crime was not committed in the US, it involved the killing of US citizens.

Mr. Mzizi (IFP) gave an example. "If my wife runs away from my house to your house (Dr. Delport's) because I was beating her, are you going to chase her back to me?"

The Chairperson agreed with this example.

The Chairperson asked the Committee to vote on the amendments but there were two people short of a quorum. They agreed to meet in the afternoon at 15h00 to vote.

Afternoon session:
The committee voted in favour of the Reinstatement of Enrolment of Certain Legal Practitioners Bill along with the amendments.

The Committee voted unanimously in favour of ratification of the SADC Protocol Against Corruption and the European Convention on Extradition. The recommendation was made that Parliament vote in favour of the Protocol and Treaty.

Appendix
EXTRADITION AND MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS TREATIES: POSITION ON 22 FEBRUARY 2002

1.South Africa currently has extradition agreements with the following countries: -

· Botswana
· Lesotho (ratified by Parliament on 7 November 2001)
· Malawi
· Swaziland
· United States of America (ratified on November 2000, notice in Government Gazette 7100 of 29 June 2001)
· Canada (ratified by Parliament on 3 April 2001, notice in Government Gazette 7063 of 18 May 2001)
· Australia (ratified by Parliament on 9 November 2000, notice in Government Gazette 7132 of 18 May 2001)

2. Treaties negotiated but not yet signed: -

· Zambia
· Argentina
· Nigeria
· Hungary
· Namibia
· Hong Kong

3. South Africa has Mutual Legal Assistance in Criminal Matters Treaties with the to following countries: -

· Canada (ratified by Parliament on 3 April 2001, entered into force 5 May 2001)
· United States of America (ratified on November 2000, entered into force 25 June 2001)
· Lesotho (ratified by Parliament on 7 November 2001)

4. MLA Treaties negotiated but not yet signed: -

· Brazil
· Zambia
· Hong Kong
· Namibia

5. The following Extradition and Mutual Legal Assistance Treaties were recently signed: -

· France
· Algeria
· Egypt
· People's Republic of China

6. The Department is currently busy setting up negotiations for the conclusion of extradition and mutual legal assistance treaties with various countries including: -
· Latin America
· United Arab Emirates
· Poland
· Romania
· Iran

7. South Africa has also designated Ireland, Zimbabwe, Namibia and the United Kingdom in terms of section 3(2) of the Extradition Act.

8. The process of accession to the Council of Europe's Convention has been completed and is currently before Parliament for ratification. It is foreseen that South Africa's accession will come into force during the latter part of 2002.

9. In terms of the Extradition Act, any arrangement made with any foreign State which, by virtue of the provisions of the Extradition Acts, 1870 to 1906 of the Parliament of the United Kingdom as applied in the Republic, was in force in respect of the Republic immediately prior to the date of commencement of the Act shall be deemed to be an agreement entered into and published on the said date by the President under the Act.

10. SADC Protocols on Extradition and Mutual Legal Assistance in Criminal Matters

- The two SADC Protocols were developed and discussed by the SADC Legal Experts at their meeting in South Africa during March 2001. However, the SADC Ministers of Justice/Attorneys-General could not finalise the two Protocols due to time constraints.

- The protocols will again be discussed in Gaborone, Botswana, from 26 to 30 June 2001. Should the Ministers of Justice/Attorneys-General approve the Protocols, they will then be recommended to Council of Ministers for signing by the SADC Summit.

11. African Union Convention on Extradition

The African Convention on Extradition was finalised during a meeting of legal experts held in Ethiopia from 4 - 8 April 2001.