Protection from Harassment Regulations: briefing; Criminal Procedure Amendment Bill: voting

Meeting report

The Chairperson welcomed all present and requested an update on the Magistrates’ remuneration matter. Ms D Schafer (DA) updated Members on discussions with Magistrates and suggested that the Magistrates be invited to meet with the Committee, as well as members of the Independent Remuneration Commission. Members agreed to the suggestion.

Criminal Procedure Amendment Bill: finalisation
Mr Lawrence Bassett, Deputy Chief Law Adviser, stated that at the last meeting of the Committee on the Bill, an alternative provision had been suggested and the Committee had requested that the Department of Justice and Constitutional Development seek the input of Judge Nugent, the National Prosecuting Authority (NPA) and Legal Aid South Africa (LASA) on the alternative provision. The Committee had also requested that the Department provided information on a number of outstanding petitions for persons without legal representation. Judge Nugent supported the proposal with a few changes. Regarding the number of petitions, there were 89 petitioners according to Judge Nugent, awaiting the transcription of records, of which 13 petitioners were not assisted by a legal practitioner. The NPA had indicated its support for the alternative provision. No firm response had been received from LASA, although there was indication that they still had unresolved concerns.

Ms Theresa Ross, State Law Adviser, added that the reviewed draft indicated that the record of proceedings would be submitted to the petitioning judge(s) if:
- the accused had no legal representation at the trial, or
- had not been legally represented for the purposes of the petition, or
- the judges considering the petition in the interest of justice requested the record or a portion thereof. Judge Nugent upon consideration of the reviewed amendment suggested that a further category be added in respect of which the record of proceedings would not have to be submitted if the prospective appeal was not against sentencing.

With regard to the Memorandum on the Objects, Ms Ross informed Members that the changes discussed were reflected in the reviewed amendment.

With no further amendments and corrections, Mr Jeffery moved for the adoption of the Bill, Prof L Ndabandaba (ANC) seconded. The Bill was approved unanimously.

Protection from Harassment Regulations, 2013: briefing
Mr Bassett informed Members that the Protection from Harassment Regulations 2013 were made pursuant to the Protection from Harassment Act, 2011. The Regulations were circulated a while back along with draft directives prepared by the NPA and draft directives relating to work of court clerks. The Regulations were mainly procedural and the bulk of it was accompanied with Forms required to be used in terms of the Act. The Act required tariffs to be imposed by the Minister where the service providers were paid for providing assistance. This had been done but was yet to be published in the Gazette. Consultation with service providers had been carried out and a draft notice had been prepared for publishing. The Act requires the Department to consult with the Department of Communications on the list of service providers - formal consultation was underway. Although briefing a parliamentary committee on regulations was not the norm, the Department welcomed the feedback and guidance of the Committee. The Minister of Justice was also required to consult with the Minister of Finance on regulations that had an impact on the State from a financial point of view.

Mr Sarel Robbertse, State Law Adviser, kicked off the main presentation with a brief background on the Regulations. The Regulations were finalised as far back as February 2011. The draft regulations were made available to the various Electronic Communications Service Providers (ECSPs), the magistracy, the South African Police Services (SAPS), the legal profession, the National Prosecuting Authority, various branches within the Department and various non-governmental organisations for comments. The response to the invitation for comments was extremely poor.

Section 19(1) of the Protection from Harassment Act, 2011 provides that the Minister may make regulations regarding – any form required to be prescribed in terms of the Act; financial assistance to be provided by the State to a complainant who does not have the means to pay the fees of any service in terms of the Act or to a witness who attends any proceedings in terms of the Act; any matter required to be prescribed in terms of the Act; and any other matter which the Minister deemed necessary or expedient to be prescribed in order to achieve the objects of the Act.

Section 19(2) provides that any regulations made under Section 19 (1) - must be submitted to Parliament prior to publication in the Gazette; which may result in expenditure for the State, must be made in consultation with the Cabinet member responsible for finance; may provide that any person who contravened a provision or failed to comply was guilty of an offence and on conviction liable to a fine or to imprisonment for a period not exceeding one year.

Although the making of the regulations was discretionary based on Section 19(1) of the Act, the Act could not be implemented meaningfully if regulations were not made to further regulate certain aspects of the Act. The Regulations were to some extent based on the regulations which were made to give effect to the Domestic Violence Act 1998.

The Regulations were divided into 31 sub regulations which were mainly procedural in nature. The Regulations seek to give effect to the Act by setting out specific processes to be followed. The regulations were read together with corresponding forms:
- Regulation 2 and Form 1 give effect to Section 2(2) of the Act, prescribing the manner in which the clerk of the court must inform the complainant or person not represented by a legal representative of the relief available in terms of the Act, and a right to also lodge a criminal complaint against the respondent in respect of crimen injuria, assault, trespass, extortion or any other offence which had a bearing on the persona or property of the complainant or related person.
- Regulation 3 and Form 2 give effect to Section 2(1) of the Act, prescribing the manner for applying a protection order.
- Regulation 7 and Form 5 give effect to Section 4(1)(b) and (2) of the Act, prescribing the form of a direction by the court in terms of which an ECSP was directed to furnish certain information to a court and the manner of service of such direction.
- Regulation 19 provides for the subpoena of persons as witness or to provide book, document or object.
- Regulation 20 prescribes the form of the final protection order and service.
- Regulation 28 deals with the traditional manner of service of documents.
- Regulation 29 prescribes a new method of service of documents.
(See document for full details of Regulations).

Discussion on the Criminal Procedure Amendment Bill
Ms Schafer asked for clarification on the addition by Judge Nugent to the alternative proposal.

Ms Ross explained that in instances where the petition was on the basis of the conviction then records of the proceedings had to be submitted.

Mr J Jeffery (ANC) asked what was meant by ‘legal representation’ for purposes of a petition. Did the accused have to be represented by a person who had a right to appearance in court?

Mr Bassett responded that legal representation meant representation by a person admitted to practice - a practicing attorney or advocate.

Mr Jeffery remarked that it was bothersome that LASA had not requested that the Bill be put on hold, pending the resolution of issues of concern. Inadequate legal representation seemed to be one of the issues of concern for LASA.

Mr Jeffery asked why the provision with regard to instances where the prosecution and defence agreed that the records be submitted, had been removed from the draft - it seemed harmless.

Ms Ross replied that with regard to instances where the Prosecution and Defence were in agreement, the NPA supported the reviewed provisions. In the previous draft, the NPA had suggested that ‘or’ be inserted after every paragraph to ensure that there was no confusion that the conditions had to be considered as a whole rather than as individual conditions. This was reflected in the current draft.

Discussion on the Protection from Harassment Regulations
Ms Schafer noted that the regulations did not contain any provisions for proof to show that documents had been received.

Mr Robbertse responded that the forms made provision for signatures upon receipt and were in duplicate copies. Further, some regulations such as Regulation 28(2) did provide for proof to show receipt.

Ms Schaffer stated that since every other method was specified in the regulation, this should also have been clearly spelt out.

Mr Bassett directed the attention of Members to Section 19 of the Act requiring the Minister to make financial provision in the regulations where a complainant did not have the means to pay or in instances where a witness attended proceedings. The implication of this was to try and limit the financial implications for the state, considering the Department’s budget was already overstretched. The regulations had not made provision for payment of witness fees at this stage and it was suggested that the issue be monitored. On payment by the State for service of documents, Regulation 30 provides that the Court Manager could authorise the State to pay where the Manager was satisfied that the complainant did not have the means to pay. Within available budget, these provisions were very restrictive and it was important that the Justice Department discussed with the Minister of Finance the financial implications of the Act’s implementation. This was the Department’s approach to limiting financial commitments on the part of the State in the implementation of the Regulations.

Mr Bassett also noted that it was possible those who had used the Domestic Violence Act might turn to the Act and the accompanying Regulations instead, because of the extra features it possessed.

Ms Schaffer questioned the delay in publishing and gazetting the Regulations, especially as the draft had been finalised as far back as February 2011. She expressed concern over the delay caused by the police and other unfinished processes in the publication of the Regulations.

Mr Robbertse responded that the service providers delayed in giving indication that they were satisfied with the Regulations, hence the delay. There were initial challenges with ascertaining the complete list of service providers as there had been a poor response from service providers initially. The Department had to work with the Department of Communications to ascertain the list. All documentation had been finalised by the Department, but certain areas of the Regulations with regard to the SAPS needed to be implemented to give effect to the Regulations. The Department had been in consultation with SAPS and an indication was given that they would be ready by last November but there had been further delays.

Mr Bassett interjected that the Act could not be implemented without the National Instruction to the SAPS coming into effect and this was the bottom line for the delays.

Mr Jeffery asked what the obstacles to the implementation of the Regulations would be. What was the status quo with regard to the tariff issue and was there an indication on when it would be sorted out.

Mr Bassett responded that a draft notice on the tariffs had been developed for when service providers provided assistance and the notice was ready for publication. Consultation had been carried out with service providers with regard to the tariffs.

Ms Scahfer asked whether service providers were resisting the implementation of the Act.

Mr Robbertse replied that the challenge was with other technical details the service providers had to comply with and not necessarily the payments of tariffs. When service providers were initially requested to provide information, the response was poor and the Department had to eventually get the majority of the information from the Department of Communications.

Mr Bassett added that in general, the service providers were the most cooperative during the drafting of the Regulations as they had provided meaningful comments. They still had reservations on some aspects of the Act which had no bearing on the Regulations. They were unhappy about having to notify clients where a directive had been made. Generally however, they had been cooperative.
 
Mr Jeffery asked for a list of matters yet to be concluded before the Act could come into effect and the time frame within which they were to be done.

Mr Bassett responded that there was still the need to consult with the Minister of Finance on some aspects of the Regulations which may have financial implications for the State. All documents for the consultation were ready to be sent out in preparation for the consultation. The Department was working with colleagues at the National Treasury to expedite the process and ensure it was concluded at the end of February.

Mr Jeffery remarked that the time frame was a bit unrealistic.

Major General Philip Jacobs, SAPS Director: Legal Services, added that the indication from SAPS was that latest by the end of February the draft National Instruction would be ready. Consultation at provincial levels with Provincial Commissioners was to commence before the end of February, as well as interaction with other colleagues to ensure compatibility between the draft National Instruction and the Regulations. On the face of it, the draft National Instruction contents did not show any conflicts so far.

Ms Schaffer asked why the process of issuing the National Instruction by SAPS had taken so long since it was after all an uncomplicated process.

Maj Gen Jacobs responded that he was unable to say why the process had drawn out and an apology was tendered.

Mr Jeffery asked when the National Instruction from SAPS would be finalised and gazetted.

Maj Gen Jacobs replied that a draft National Instruction was already in place - all that was left was to ensure its compatibility with the Regulations. The intention at SAPS was to speed up the process and ensure the National Instruction was signed off by the National Commissioner by the end of February. The National Instruction would be distributed across all provincial police stations as part of the implementation process. There was no need for publication in the Government Gazette - all that was required was an internal police distribution process.

Ms Schaffer, on behalf of the Committee, expressed extreme dissatisfaction with the police’s handling of the National Instruction. There was a need for a concerted effort to get it done as the actions of the SAPS so far had shown little concern for crimes against women and children.

Mr Jeffery suggested that a formal letter be written to the Minister of Police by the Chairperson of the Committee to express the displeasure of the Committee and request for the matter to be expedited. It was also important to compile a report to the House to express the concerns of the Committee, and also indicate the need for training of the police and court clerks on the Regulations. Furthermore, Form 1 needed to be translated into all 11 national languages.

Mr Jeffery stated with regard to the preference of the Act over the Domestic Violence Act, that there was an amendment to the Domestic Violence Act bringing it in line with the Protection from Harassment Act and this needed to be highlighted, particularly to the police to avoid the confusion.

Members discussed briefly the submissions for the hearings on the Legal Practice Bill. The Chairperson thanked all present and the meeting was adjourned.