Public Protector Inquiry; Criminal Procedure Amendment Bill: deliberations

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Justice and Correctional Services

20 November 2012
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Portfolio Committee on Justice and Constitutional Development discussed the matter of the complaints from the Public Protector’s Office which was referred to the Committee by the Speaker. It was suggested that the Committee should invite the Deputy Public Protector so as to kick off proceedings before her term ended later this month, the Committee agreed to this. The Committee agreed that the meeting with the Deputy Public Protector would be open. The Committee expressed disdain at the article in the Mail and Guardian and felt that it was surprising, not understandable and appalling. The Committee questioned the role that the Office for Institutions Supporting Democracy could play in the matter of the Committee’s inquiry behind the complaints from the Public Protector’s Office.

The Department of Justice and Constitutional Development put to the Committee a draft proposal on the Criminal Procedure Amendment Bill [B26-2012] which the Committee felt addressed the concerns raised by judges of the Supreme Court of Appeal, Legal Aid South Africa and the Committee. The Committee took the decision that it would finalise the Criminal Procedure Amendment Bill this year and vote on it next year.


Meeting report

Enquiry into allegations against the Public Protector (PP)
Mr J Jeffery (ANC) asked the Committee to deal with the matter of the PP.

The Chairperson agreed.

Mr Jeffery said that the Committee had informally discussed that the Deputy Public Protector (DPP) would be called to appear before the Committee concluded this year as opposed to next year. The DPP was leaving this year and it would be best to start with her. The Committee would then assess where it wanted to go with this. The inquiry should be open. The Mail and Guardian article stated as an objective fact that Parliament was going to roast the PP, this was absolutely appalling. The media contradictoriness was baffling at times as in the past they had complained of closed meetings. The Committee should inform the PP as to what was happening and then invite her to send a representative as opposed to having her at the inquiry; she would be afforded the opportunity to respond later.

Ms D Schäfer (DA) said that she agreed with the suggestions and had no problem with the meeting being open. The article by the Mail and Guardian was not understandable as it had said that the inquiry should be closed whereas the issues had been aired out in public anyway. Inviting the DPP to go through the documentation in an unstructured manner was a slight concern as a lot of the staff was pickety and petty and had to do with management issues which were not fundamental to the Office of the PP. The DPP should be asked to limit herself to the fundamental issues.

Ms M Smuts (DA) said that the assumption in the Mail and Guardian was surprising as it said that the Committee must be closed, at what point had the basic principle of openness changed? This article was strange. An exercise like this was tedious in the extreme. These issues were frequently petty and vengeful particularly from Chapter 9 Institutions and this one was not convincing either.

Ms C Philane-Makaje (ANC) said that she supported the views of the Committee. The fact that these allegations were coming from the DPP meant that they were not petty. This sort of instability was also rife amongst Chapter 9 Institutions.

Mr S Swart (ACDP) said that the Committee had to respond to the unfair comments in the Mail and Guardian. The Committee needed the Chairperson’s guidance as to dealing with the real issues as opposed to the petty issues that were not relevant. The Committee also had to bear in mind the role of that the Office for Institutions Supporting Democracy (OISD). The Committee had a lot of work to do; however it had a role to play in dealing with the systemic issues.

Mr S Holomisa (ANC) said that OISD had to be seized with some of these matters. What was the Committee’s own intention; it was a concern that the Committee may be driven by the media. The Chairperson should write to the Mail and Guardian to put forth an accurate picture and do away with the lies that were being told in the article.

Ms L Adams (COPE) said that she was concerned the Committee was setting a dangerous precedent as there were other institutions that the Committee performed oversight over and if it heard complaints from this particular one then what stopped the others from wanting to hear their complaints heard as well. Reading through the documents was at times a waste as many of the issues were petty.

Mr Jeffery said that the complaint was referred to the Speaker by the PP who then referred it to the Committee so the Committee had to deal with this and report back to the House. This was the distinction between this matter and others so the Committee was not an open door for any issue.

Ms Schäfer said that the issues should be limited.

The Chairperson clarified that the Committee had received the anonymous complaint via the Speaker’s Office and it was the PP that had requested an inquiry. The Speaker referred the matter to the Committee; it was not clear why the Mail and Guardian article left this out. The previous case of alleged sexual harassment in the PP’s office was held behind closed doors but surely this was not binding on this Committee?

Ms Smuts said that this was not binding. Ms Smuts said that the Mail and Guardian was being prompted by someone and one would have to ask in whose interest.

The Chairperson said that there was a demand that the matter should be heard by an ad hoc committee and to the Speaker’s credit he refused the request and referred it to the Committee. For the Mail and Guardian, the champions of right to know, media freedom and transparency to then advocate and call for a closed hearing because it involved the PP beggared belief. The article was unbelievable and one had to ask what was really behind it?

Ms S Sithole (ANC) said that the Committee should know that the media in South Africa wrote what they wanted.

Ms Smuts said that there was a distinction between reportage and comment. It was not that the newspaper took this editorial position; it was that a particular full page report worked on this assumption. In as much as the Mail and Guardian practiced advocacy journalism this report was not that one sided, it was a piece of advocacy. It was not entirely incorrect of the Chairperson to state that the Mail and Guardian did this. This was not an editorial or comment, it was a reportage that took a certain position and disregarded certain facts.

Ms Schäfer said that interestingly enough the journalist did call her and ask if the Committee had decided on the process to which the answer was no, this was also not included in the article. The PP was not unaccountable to anybody, she was not untouchable and the Committee had to play an oversight role as there were some serious allegations made.

Ms Philane-Makaje said that the Committee’s discussions should be based on facts and not the newspapers. It was not clear why an impression was created that there was a particular attitude that the Committee has adopted towards the PP. 

The Chairperson said that the Committee should move on to the Criminal Procedure Amendment Bill [B26-2012].

Criminal Procedure Amendment Bill [B26-2012]: deliberations
Mr Lawrence Bassett, Chief Director for Legislative Policy Development from the Department of Justice and Constitutional Development, said that the Department had prepared a draft but was awaiting the Committee’s deliberations. It was in the interests of accused persons that speedy justice and finality was achieved. Legal Aid South Africa (LASA) still had some valid concerns.

Ms L Adams (COPE) agreed that there was a problem with Clause 300(10)(c) and it should be amended. COPE had another proposed amendment. The proposed amendment read “When receiving notice of a petition as provided for in sub-section 9 the Registrar shall as requested by the judge of the Supreme Court of Appeal forward to the Registrar of the Supreme Court of Appeal copies of (a) application or applications (b) the reasons for refusing an application and (c) call for any further information from the judge who refused the application in question or from the judge who presided at the trial to which the application relates as the case may be”. The opportunity would be given to the judge to decide what was important and also to not delay the process.   

Ms Schäfer said that she liked the draft from the Department as it covered all concerns. The suggestion from Ms Adams did not mention legal representation at the petition stage.

Mr S Swart (ACDP) said that Ms Adams should circulate her proposal. The draft from the Department was a good one. This would assist in alleviating costs as well as speeding up the process. This was a narrow petition for leave to appeal.

Ms Schäfer said that the two cases were referring to a trial within a trial; they were not stating that the appeal court had to have the entire record. The cases did not preclude the Committee from making the amendments it was planning to make.  The issue of retrospectivity has been dealt with.

Mr Jeffery said that the position of an accused and the prosecution agreeing was not covered. What about where the judge did not disclose all the relevant reasons because this was one of the issues in the cases. It would be useful for the Committee to finalise the Bill this year so that it did not have to re-remember it all over again in 2013.

Mr Bassett said that the Bill would ensure that the number of cases where the record was needed would be reduced significantly; judges would call for the full record only in cases where they felt it was necessary. Paragraph (c) of sub-section 12 would still be maintained.

Mr Jeffery said that the Bill should be finalised next week so that next year the Committee just voted on it.

The Chairperson agreed and adjourned the meeting.



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