Suspension of Magistrates; Criminal Procedure Amendment Bill [B26-2012]: briefing by Department of Justice and Constitutional Development

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Justice and Correctional Services

17 September 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Portfolio Committee on Justice and Constitutional Development considered the outstanding matters on suspended magistrates. In the matter of Magistrate Ndamase, the Committee proposed removal and in the matter concerning the withholding of remuneration and removal of Magistrate Tyulu, the Committee confirmed the decision of the Minister of Justice and Constitutional Development.

The Committee then received a briefing from the Department of Justice and Constitutional Development on the Criminal Procedure Amendment Bill [B26-2012]. The aim of the Bill was to amend Section 316(10) and 316(12) of the Criminal Procedure Act. Section 316(10) of the Criminal Procedure Act regulated applications for condonation, leave to appeal and further evidence in criminal proceedings in the Supreme Court of Appeal where  applications for condonation, leave to appeal and further evidence had been refused by
the High Court. Section 316(10) of the Criminal Procedure Act was amended by Section 16 of the Judicial Matters Amendment Act. In the case of Shinga vs the State and Others, the Constitutional Court, among others, found section 309C (4) of the CPA to be unconstitutional. The Constitutional Court was of the view “that the record of the case should, as a matter of course, be placed before the petition judges on the basis that an adequate reappraisal is not possible without the record”. The court ordered that these exceptions must be deleted. The judges of the Supreme Court of Appeal approached the Minister, pointing out that section 316(10)(c) of the Criminal Procedure Act, in its current form gives rise to the following challenges, among others: Delays caused by having to wait for the record of the proceedings resulting in grave injustice to the appellant; an increased work load on the Supreme Court of Appeal judges; the costs involved in obtaining the record which may be completely without justification; the delays may also result in the appellant being detained in prison, or released on bail, without justification for longer than is necessary. The Supreme Court of Appeal judges had also requested that the amendment Bill should apply retrospectively to the pre-2008 period.

The Committee expressed concern that the Bill would apply retrospectively given that in principle this was something that was frowned upon by South African courts. The Committee was also concerned that the Department of Justice and Constitutional Development had done a complete turnaround on the proposed amendments when they were convinced that the original amendments of 2008 were correct. The constitutional validity of the proposed amendments was questioned given that
the Constitutional Court had said that it was imperative to have a record of the magistrate’s court but it was fine if it was not there for the High Court which heard cases from the former on appeal. The Committee was sympathetic to the practical challenges raised by the Supreme Court of Appeal judges. The Committee took the decision to seek a legal opinion on the constitutionality of the provisions including their proposed retrospective applicability.

Meeting report

The Chairperson said that the first item on the agenda was the outstanding issues relating to the suspension of magistrates. The second part of the programme would be a briefing from the Department of Justice and Constitutional Development (DoJ&CD) on the Criminal Procedure Amendment Bill [B26-2012].

Magistrate N Ndamase
Ms D Schäfer (DA) proposed for the removal of Ms Ndamase.

Mr S Swart (ACDP) seconded this.

The Chairperson asked for those in favour to raise their hands.

The Committee unanimously agreed and there was nobody who opposed.

Withholding of Remuneration: Mr M Tyulu; Removal from Office of a Magistrate: Mr M Tyulu
Mr J Jeffery (ANC) said that there some confusion here, the Committee was requested to confirm the withholding of remuneration as well as removal from office; surely once a person was removed they were not going to continue receiving a salary. The Committee should check if Mr Tyulu was being paid at the moment. The remuneration was withdrawn once Mr Tyulu was suspended by the Minister; the Committee had to ratify this. The Committee should proceed with both; the departmental officials could double check this. If it was not necessary to withdraw his salary then that should not be put before the House.

The Chairperson put the first report to the Committee.

The Committee unanimously agreed.

The Chairperson put the second report to the Committee.

The Committee unanimously agreed.

Mr Vhonani Ramaano, Committee Secretary, confirmed that Mr Tyulu was not receiving his salary.

Briefing on the Criminal Procedure Amendment Bill, 2012
Mr Lawrence Bassett, Chief Director (CD): Legislative Development, DoJ&CD, said that a copy of the Judicial Matters Amendment Bill [B48-2008] was included because its subsequent Act was relevant. The Bill was circulated as opposed to the Act because the memorandum on the objects was attached to it.

Mr Vuli Matayi, Assistant Director: Legislative Development, DoJ&CD, said that the aim of the Bill was to amend Section 316(10) and 316(12) of the Criminal Procedure Act (CPA). Section 316(10) of the CPA regulated applications for condonation, leave to appeal and further evidence in criminal proceedings in the Supreme Court of Appeal (SCA) where applications for condonation, leave to appeal and further evidence had been refused by
the High Court. Section 316(10) of the CPA was amended by Section 16 of the Judicial Matters Amendment Act (JMAA). In the case of Shinga vs the State and Others, the Constitutional Court (CC), among others, found section 309C (4) of the CPA to be unconstitutional. The CC was of the view “that the record of the case should, as a matter of course, be placed before the petition judges on the basis that an adequate reappraisal is not possible without the record”. The court ordered that these exceptions must be deleted. Section 316(10) of the CPA regulating applications for leave to appeal from the High Court to the SCA had corresponding exceptions to those contained in section 309C(4) of the CPA. Therefore, when the exceptions in section 309C(4) of the Act were deleted in the JMAA, the corresponding exceptions in respect of applications from the High Court to the SCA contained in section 316(10) of the CPA were consequently deleted.

The judges of the Supreme Court of Appeal approached the Minister, pointing out that section 316(10)(c) of the Criminal Procedure Act, in its current form gave rise to the following challenges, among others: Delays caused by having to wait for the record of the proceedings resulting in grave injustice to the appellant; an increased work load on the SCA judges; the costs involved in obtaining the record which may be completely without justification; the delays may also result in the appellant being detained in prison, or released on bail, without justification for longer than was necessary. The SCA judges had also requested that the amendment Bill should apply retrospectively to the pre-2008 period. The amendment sought to restore the position regarding the submission of a record of proceedings to the petition judges to the pre-2008 position in terms of which it would not be necessary to submit a record of proceedings when a petition was received and the petition judges would have a discretion to call for the record if they considered the information that they had to be insufficient.

Discussion
Mr S Swart (ACDP) said that this made eminent sense; there would be a need for more consideration on the retrospectivity issue. Retrospectivity could only apply if there was no depravation of accrued rights or prejudice caused. The main concern was the retrospectivity aspect of the Bill.

Mr J Jeffery (ANC) asked if the JMAA in front of the Committee was the final version that was introduced in the National Assembly (NA). It was a concern that on the basis of the petition from the SCA judges, the original rational for the amendment was now completely thrown out. How sure was the Department now? Had the legislature ever passed any retrospective laws and could it do so?

Mr Bassett said that the Department was requested specifically by the SCA to incorporate retrospectivity, the 10 of September 2008 was used because this was when the particular provision came into operation, and some of the other provisions came into operation upon promulgation. A memorandum from the SCA judges would be made available to the Committee. The Department had submitted the incorrect version of the JMAA; it was supposed to be the B version which would be made available. There was a long history of these provisions including other judgments on page 3 of the briefing note; this was one of the reasons the Department recommended the amendments in 2008 for appeals from the High Court to the SCA. The CC had held that the provisions of Section 309 of the CPA were unconstitutional and these provisions dealt with appeals from the magistrate’s court to the High Court as well as High Court to SCA. There had been instances where only once a piece of legislation was on the statute book then one realised that there were practical challenges. The SCA had said that the 2008 amendment had not corrected the mischief originally intended. It might be appropriate to go the route that had been suggested in terms of balancing the rights of all parties.

Mr Jeffery said that the problem was that on the one hand one had the right of the accused to have their matter properly considered. It was not clear what other rights were there that had to be balanced. The SCA had raised practical problems only. Why did the CC say it was imperative to have a record of the magistrate’s court but it was fine if it was not there for the High Court? The High Courts decisions could also be wrong as observed in the recent Prins judgment. If these were valid factors that had to be considered to ease the workload of SCA judges was there not a contradiction that they did not have to apply to High Court judges who had to consider appeals from the magistrate’s courts? The officials may not be able to address this. The SCA was not going to rule that this was unconstitutional however they were not the final court. The Committee may have to get a legal opinion.

Ms D Schäfer (DA) said that the state law advisers could be used.

Mr Jeffery said that the state law advisers must be of the opinion that this was constitutional otherwise the Bill would not be in front of the Committee.

Mr Bassett said that the Department would revert to the Committee on the questions it had raised. The CC in S vs Rens held that where there was justification for differences in appeal procedures, the degree of certainty was greater lower down the chain than where one moved further up. The extracts from this case would be made available to the Committee. Retrospective legislation had been done in the past and the Committee would be provided with extracts. The SCA had indicated that it was more than willing to come before the Committee.

Mr Jeffery said that the concerns raised by the SCA were valid, they were clear and understandable.  The question was why this only applied to High Court judges and not SCA judges.

The Chairperson said that the Committee would need the memorandum from the SCA, and an opinion from the state law advisers.

The Committee agreed to seek outside legal advice on the constitutionality of the amendment as well as on the issue of retrospectivity.

The meeting was adjourned.

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