Criminal Procedure Amendment Bill, Dangerous Weapons Bill: Parliamentary & Department briefing

Meeting report

Parliamentary Research Unit briefing on Criminal Procedure Amendment Bill [B26B-2012]
Ms Patricia Whittle, Committee Researcher, Parliament, noted that the Criminal Procedure Amendment Bill dealt with section 316(10) and (12) of the Criminal Procedure Act (CPA), in relation to appeals in criminal proceedings. She reminded the Committee that the accused had a right to a fair trial, not to be deprived of freedom and to have an appeal heard speedily by the higher court.

The amendment sought to no longer require the Supreme Court of Appeal, when petitioned for leave to appeal,  to request the record, if the appeal was against the sentence only. It also gave the appeal court would have discretion to call for the record, if this was in the interests of justice. It set out the circumstances in which that record must be requested, which, in summary were,
- where the accused was represented during trial, but was not represented any more
- where there was an agreement between accused and prosecution that the record was not needed
- if there was a possibility that if the record was not present, the appeal court may find a mistake
- in cases where the prospects of success on appeal may be determined from the record.

Currently the requirement was that the full record of proceedings must be submitted in support of a petition to the Supreme Court of Appeal (SCA). However, this had caused considerable delays and injustice caused to applicants who had to wait unreasonably long for decisions on their petitions. In one case, for instance, the accused had waited for eight years for the appeal process to be concluded, and the court had eventually confirmed both the conviction and sentence. This delay particularly affected accused who were in prison pending the outcome. In addition, the full record was extremely costly.

Ms Whittle said that the matters needing to be considered were whether the amendment affected the accused’s right to a fair trial, and to proper administration of justice. Certainly, it would speed up the process if the SCA was not required to call for the full record, but could have discretion whether it considered that the record was necessary.

There was one submission made to the Portfolio Committee on Justice, when it considered the matter, from the Legal Resources Centre, which felt that the amendment might affect the accused detrimentally. The question was whether this Committee would agree with those points. The amendment was supported by the judges of the SCA, who had in fact asked the Department of Justice and Constitutional Development (the Department) to effect this amendment.

There was one point that she wished to highlight; namely, that the amendment was to apply retrospectively to 2010, but the State Law Adviser said that if the amendment applied retrospectively, there would not be any problem.

Mr Irvin Kinnes, Content Adviser to the Committee, highlighted that the circumstances in which the full record would be needed were detailed in the Bill. He read out the section as it was proposed that it be amended and confirmed Ms Whittle’s comment on the circumstances when the full record would be required. He also repeated that the State Law Advisers believed that this amendment was constitutionally sound and had no problem with the retrospectivity, if the Bill were to apply from 2010. There was nothing particularly complex set out in the Bill.

Discussion
Mr J Gunda (ID, Northern Cape) asked for more clarity on the Legal Resources Centre submission.

Ms Whittle said that the Legal Resources Centre (LRC) believed that if the section of the CPA were changed, the rights of the accused to a fair trial would be detrimentally affected. The LRC still felt that the appeal court must look at the full record. However, she repeated that the way the legislation was currently phrased meant that there were long delays in getting the record, and she added that the judges had said that in any event they did not always peruse the full record, even when they had it.

Mr Gunda asked how the accused could be detrimentally affected if the old wording were to remain in place. However, he heard the points about the delay and agreed that currently, it was taking far too long for cases t be heard. He was assisting accused in Upington who had been waiting six years for their appeal to proceed.

Mr L Nzimande (ANC, KwaZulu Natal) shared these concerns. He noted that the clause did allow for records still to be brought to the court, but did not insist upon it in all cases. He also wanted to hear more on the retrospective application that was proposed.

Ms Noluthando Mpikashe, State Law Adviser, Office of the Chief State Law Adviser, noted that it was the judges of the Supreme Court of Appeal who called for the amendment to apply and also noted that they would prefer it to apply retrospectively. She reiterated that the amendment would in fact assist accused to get the appeals heard sooner. In many cases, the SCA did not need the record in order to decide upon the petitions. She also added that the cost of the transcripts could be as high as R15 000. It would assist in reducing the current backlog if the amendment was applied retrospectively.

Mr Nzimande fully understood the intention behind the amendments, but still wanted to know why the retrospective application was sought. He believed that this amounted to the judges asking Parliament to legislate specifically for a problem that was facing the judges at this time. He also agreed with Mr Gunda’s concerns about the long delays.

Mr Kinnes said that the Departmental submissions indicated that there were a number of challenges in the current system. At least one of the cases, although he was not too sure about the date, had been referred to the Constitutional Court.

Mr M Makhubela (COPE, Limpopo) agreed that the preparation of the record was generally very expensive.

Mr A Matila (ANC, Gauteng) noted that there were many who had been waiting for long for the decision of the SCA, but he was still worried about the retrospective aspects and pointed out that Parliament generally legislated for the present. He wondered if this amendment was intended specifically to deal with the cases lying in the courts. He asked that the Department give him more information on these points.

Department of Justice and Constitutional Development briefing on Criminal Procedure Amendment Bill [B26B-2012]
Mr Lawrence Bassett, Deputy Chief State Law Adviser, Department of Justice and Constitutional Development, reminded the Committee that the Department had provided a briefing document to Members.

Ms Theresa Ross, Principal State Law Adviser, Department of Justice and Constitutional Development, reported that the Bill aimed to amend section 316(10) of the CPA. This dealt with criminal appeals from High Courts to the Supreme Court of Appeal, and covered applications for condonation, leave to appeal and further evidence in criminal proceedings.

Section 316(1)(a) provided that an accused could apply to the same High Court that convicted that person, for leave to appeal against an order or sentence. In terms of section 316(1)(b), that application must be made within 14 days, or within a further period that the Court may, on application, allow. Section 316(5) said that it may be accompanied by an application to lead further evidence. Section 316(8) said that if the High Court refused any of those applications, the accused may petition the President of the SCA to grant any of these applications.

When a petition application was submitted to the SCA, section 316(1) required that the Registrar of the High Court forward copies of the following:
- any application that was refused
- the reasons for refusal
- a full record of the proceedings in the High Court, in respect of which the application was refused.

In terms of section 316(11), the petition to the SCA must be considered by two judges. In the event of the two differing in their opinion, the petition must be considered by the President of the SCA, or by any of the other judges, as designated by the President

In terms of section 316(12) the judges considering the petition had the discretion to call for any further information from the judge who refused the initial application, or the one who presided at the trial to which the application related.

Ms Ross noted that section 316(10) had been amended to its current form, by the Judicial Matters Amendment Act of 2008. This effectively made it compulsory for the full record to be prepared and made available to the SCA, in respect of all petitions. Prior to that 2008 amendment, when a notice of petition was received, the Registrar of the SCA must request the record of the proceedings in the High Court, to which the petition related, except if the accused had been legally represented, if the accused’s legal representatives and the prosecutors had agreed that this would not be necessary, if the appeal was against sentence only, or if the petition related solely to an application for condonation of the time periods. She stressed that the judges of the SCA still, however, had the discretion to call for the full record, if they wished to.

Ms Ross added that prior to the passing of the Judicial Matters Amendment Bill of 2008, section 309(c)(4) of the CPA, which dealt with criminal appeals from the lower (magistrate’s court) to higher courts provided that where leave to appeal was refused, and the appellant then petitioned the higher court, the Clerk of the Court must submit the petition, reasons for refusal and record of the proceedings in the trial court must be submitted. However, the full record of the proceedings in the trial court would not be required if it was a Regional Court matter in which the accused had been legally represented, if the accused’s lawyers and the prosecutors had agreed that this would not be necessary, if the appeal was only against sentence, or if the petition related to condonation of time periods. In other words, it had mirrored the provisions of section 316 prior to the amendment.

It was this section 309 that had been challenged in the Constitutional Court, and found to be unconstitutional, with the Constitutional Court expressing the view that the full record would have to be placed before the judges, because it was not possible to consider the matter fully without that. As a result of this decision, both sections 309 and 316 had been amended, by the deletion of those exceptions. There was, however, a distinction that could be drawn. The Shinga matter taken to the Constitutional Court had dealt with appeals from the Magistrate’s Court to High Court. The same factors were not necessarily relevant in respect of appeals from the High Court to Supreme Court of Appeal. However, the Department had decided, at the time, to err on the side of caution, particularly because of the strong wording in the judgment. There had been some constitutional challenges around these requirements as far back as 1996, and the two sections had been inserted in the CPA in 2003. Section 316(10) was challenged recently in the Qinga matter in the Constitutional Court, but the Court had not found it necessary to consider any constitutional issues.

Ms Ross noted that the current amendments in the Bill had been requested by the SCA judges, who had asked the Minister to reinstate the position, as it had existed before 2008 amendments. They argued strongly that the current wording of section 316(10) presented various problems. The delays caused by having to wait for the record, meant great injustice to the appellant, who was frequently detained, and in some cases, the accused may be released on bail, which had the potential to pose dangers to society. The costs of calling for the full record to be prepared may be completely unjustified. The SCA judges had noted that they had a huge workload already and in most cases the perusal of the whole record was simply not warranted, and was not done. Where the appeal was in respect of the sentence only, there was no reason to have the full record of proceedings.

Statistics obtained from the Registrar of the SCA confirmed the extent of the problem. From 1 January 2011 to 13 June 2011, it was reported that the SCA received 101 petitions and applications for leave to appeal in criminal cases. Of these, 18 were granted, 77 dismissed and five withdrawn. In other words 77% of all petition applications failed. The average time within which a criminal record would, in practice, be filed exceeded the three-months period, often taking up to six months, or even a year to be prepared and filed. Ms Ross noted that when the Court considered the leave to appeal application, it would look to whether there was a reasonable prospect that another court may reach a different conclusion. This decision could be made without needing to refer to the evidence raised at the trial. Currently, there was a difficult situation, with petitions piling up in the Registrar's Office, that could not be dealt with until the records were compiled, even if it was entirely clear which way the decisions would go already. In addition as mentioned already, the costs of compiling the full record were prohibitive, around R15 000 to compile a record of three to eight volumes, which translated to an annual cost of R2.3 million. If the record could not be prepared, it may be necessary to uphold the appeal, even if this would in principle be incorrect.

She noted that the National Assembly had decided to revise the Bill as initially drafted and the effect, as reflected now in the Bill before this Committee, was that submission of the full record would only be compulsory if the accused was not legally represented, or if the accused was represented initially, but was no longer represented for the purposes of making the petition, or where the prospective appeal related to matters other than sentencing only, or where the judges requested the record, or a portion of it, in the interests of justice.

She then noted that clause 2 of the Bill contained the reference to the short title and commencement. She explained that the main problems around clause 316(10) had started with the passing of the Judicial Matters Amendment Bill and the judges had requested that when the clause was amended, it should be done retrospectively to the date on which the Judicial Matters Amendment Bill of 2008 had introduced those requirements, namely 10 September 2010. That would mean that the position would change to the new requirements now detailed, and affect all petitions lodged after 10 September 2010.

Ms Ross again reiterated that the effect of the amendment would be that the full record would only have to be provided, in respect of those petitions, in the circumstances detailed in the Bill. She also reiterated that the judges considering the petitions would still have a discretion to call for the full record if they deemed it necessary.

The Department had been advised that as at the beginning of January 2013, there were 89 petition applications in which records were awaited. Of those, only 13 of the accused had not been legally represented. Those 13 would fall under the exceptions, but the rest of the petitions could be disposed of far more speedily. This would give some certainty to the petitioners who were still awaiting finalisation of their matters. The retrospectivity would cause them no prejudice, but would in fact speed up the finalisation of their petitions. This point had been deliberated upon, at length, when the judges of the SCA had appeared before the Portfolio Committee on Justice to put their views. The State Law Advisers had advised also that the retrospectivity was legally sound.

Discussion
Mr Gunda thanked the Department for the briefing, and said that this clarified the purpose of the Bill. He had no problems with passing the Bill. However, he did ask for it to be put on record that apartheid had destroyed the dignity of people, and anything that could assist people who had been suffering for many years, and those who could not afford an advocate, should be welcomed. He complimented those who had proposed the amendments, and urged his colleagues to pass the Bill.

Mr Makhubela noted that he was concerned to hear about the backlog, and said he had needed to know why 10 September 2010 had been chosen as the date for coming into operation of the Bill.

Mr Matila agreed that good work had been done, but he did not support Mr Gunda’s call to adopt the Bill now. He wanted more time to study the legislation in depth. He noted the Department’s comment on what had been submitted in the National Assembly, and also wondered what the Portfolio Committee on Justice and Constitutional Development view was on the submissions of the Legal Resources Centre, as well as whether there had been other submissions. He said that he had also heard the comment that preparation of the record was very expensive, but thought this was not the prime motivator.

The Chairperson noted that the Committee was intending to meet on the following day, to deal with the Dangerous Weapons Bill, and perhaps some time could be found to consider this Bill further also.

Mr Bassett agreed that the main reason for introducing the amendment was not for expediency or financial considerations, and although these were certainly factors, the prime concerns were the negative implications of the delays on the accused. Mr Matila had raised some important points. He noted that the judges of the SCA had not submitted a written submission, but had made oral submissions, and whilst he did not have anything himself, he was sure that Parliamentary Monitoring group could provide an extract of the meeting showing their submission.

Mr Gunda agreed that this would be useful. He noted that this was the first briefing on the Bill. He reiterated his concerns on the matter in Upington, concerning two brothers who had been waiting for six years, but where the record was apparently unable to be found. That was only one example and there must be thousands of others. He pleaded with his colleagues again not to create inordinate delays. The State could be liable for substantial damages, and he could not allow people to suffer further if he had the opportunity to make their plight easier.

Mr D Bloem (COPE, Free State) said that in the years since 1994 Parliament had needed to re-do many pieces of legislation where mistakes had been made. He heard Mr Gunda’s concerns, but agreed that Parliament must be given sufficient time to satisfy itself on the accuracy and desirability of proposed legislation.

Mr Matila agreed. It was necessary to have a full explanation on what the Bill contained, and why it was written in a certain way. He agreed in principle with Mr Gunda but reiterated that the matter must not be rushed.

Mr B Nesi (ANC, Eastern Cape) said he had many questions about the necessity for the Bill, and he was quite sceptical of many Bills emanating from this Department. He agreed with the need to go through matters carefully. There were indeed people who were affected, but the law must take its course and Parliament must scrutinise all bills carefully and consider the implications. One day, he would like to see the Department bringing a bill that would undo what apartheid had done to society, from a racial and economic stance, which should be a bill that truly assisted transformation. The Department should explain how every Bill was seeking to assist the transformation agenda. The Department may not understand the National Development Plan (NDP) in the same way as the Committee. There was a question why the Bill had been brought now. He said that he was not expressing suspicion, but caution.

The Chairperson noted that the Committee would be meeting next week to finalise the Bill and the Department would be asked to attend, if necessary.

Parliamentary Research Unit briefing on Dangerous Weapons Bill [B37B-2012]
Ms Whittle took the Committee through some of the key issues of the Bill, referring to the attached document.

The Dangerous Weapons Bill was introduced following a ruling by the Constitutional Court that legislative steps must be taken to rationalise the Dangerous Weapons legislation in respect of the former TBVC states (Transkei, Ciskei, Venda, Bophuthatswana), since certain sections were considered unconstitutional and it was clear that, following re-incorporation, uniform legislation was required to regulate dangerous weapons in South Africa.

The Bill now before the Committee sought to repeal all former legislation relating to dangerous weapons, not only the legislation that applied in the formerly independent states. The main problem was not so much whether portions of the existing legislation in all states was unconstitutional in itself, but the fact that the legislation was not being applied uniformly throughout.  The Bill would also seek to amend the Regulation of Gatherings Act by expanding the categories of weapons, criminalising possession of dangerous weapons and inserting provisions around their intended use.

Ms Whittle wished to draw certain aspects to the attention of Members. The first point was that a very wide definition had been drawn for what a dangerous weapon would be. The definition included objects that, although not specifically designed to be weapons, could nonetheless be used as such. The Committee may wish to give specific consideration to the definitions and decide whether they wished them to be narrowed. One of the submissions made during public hearings on the Bill to the Portfolio Committee had been made by organisations who represented victims in domestic violence cases, who had specifically pointed out the danger that ordinary household objects could be used as dangerous weapons, and could cause serious harm. The point was also made that the courts were tending towards lighter sentences in such cases, but a change in the definitions might impact also on sentencing.

Ms Whittle also said that a firearm, as defined in the Firearms Control Act, was not included under the definition of a dangerous weapon, although it was not clear why.

Other public submissions had raised the point that perhaps what this Bill sought to achieve could equally well be achieved by amending other legislation, such as the Regulation of Gatherings Act and the Firearms Control Act, and she suggested that the Committee may also wish to consider whether it would be more appropriate to amend those provisions and expand the list of items that could be covered as “dangerous weapons”.

Ms Whittle noted that the Bill provided that in certain circumstances, mere possession of a dangerous object could be a criminal offence. She would have preferred to see the criminality being determined on the intention of the possessor to use that as a weapon to inflict harm. Discretion was given to a police officer to determine whether the person intended to use the object as a dangerous weapon, and she suggested that perhaps it would be preferable to have this discretion reside with the court, who should decide whether all the elements of the offence were present

The document also highlighted some recent developments. It was noted that the Minister of Police had appointed a Task Team to investigate irregularities in the firearms industry, where dealers were not complying. She wondered whether it would not also be more appropriate to strengthen the current measures and safeguards in view of media reports, in particular, that dealers were selling arms without licences or competency certificates. Certainly it appeared that there was much that needed to be tightened up, and she suggested that the existing legislation should be brought in line. She again said that the Committee may wish to consider whether the definitions needed to be amended. If there was a further widening of the scope, even an object such as a phone could be used as a dangerous weapon if a person was hit hard enough with it. The intention in each case would have to be determined by the facts of the case.

Mr Kinnes thanked Ms Whittle for her input, and added that he had put together a list of possible questions that Members might wish to consider asking when they received a briefing. For instance, he referred to matters on page 2. Certain activities were not defined, and he posed the question whether it would be necessary to define what “cultural activities” were, and what would be the consequences of being in possession of traditional items. He also suggested that more thought was needed in relation to legitimate collections of firearms or objects, displays, what would be included as “recreational activities”, and whether there was a need for further definitions.

Mr Kinnes shared Ms Whittle’s concerns about the criminalisation of possession, pointing out that clause 3(1) said that if a person was in possession of a dangerous weapon, in circumstances where the police officer had a reasonable suspicion that it would be used to inflict harm, that person could be charged, and liable, on conviction, to a fine or imprisonment not exceeding three years. This posed the question of what a “reasonable” suspicion would be. This Committee’s experience should guide it. If it was left to the police services to determine intention, he thought that not enough discretion was built in, and agreed that it would be preferable that this decision be left with the court.

Clause 3(2)(a) provided for measures objectively used to determine intention, and one of the provisions concerned the time at which a person was found in possession of a dangerous weapon. He suggested that the Committee would need to consider how to interpret behaviour of a person and the threat. He cited the example that a group of marchers might be holding a protest march, but another person might be completely unconnected to that march, but happen to be in the street, holding a wheel brace to fix his car parked in that street, when the marchers came past. This completely innocent person could be arrested on the suspicion that at the time and place, there was a suspicion that he could use the brace as a dangerous weapon.

Clause 3(2)(d) dealt with circumstances of drug dealing and organised crime, and this was an interesting provision. A person could be asked to explain any relevant factors for possession, but he questioned whether this did not conflict with the right of an individual to remain silent.

Clause 5(a) to (d) related to the amendments to the Regulation of Gatherings legislation, and clause 6 t amendments t the Firearms Control Act. These clauses were quite clear. The short title and operation were not contentious; the Bill would be deemed to come into effect on a date determined by the President.

Discussion
The Chairperson indicated that he would prefer any questions to stand over until the following day when the Bill would be discussed in more depth.

Mr Gunda specifically noted his thanks to the Researcher and Content Advisor for their insightful remarks.

The Chairperson noted that the Committee Report on the Strategic and Annual Performance Plans of the South African Police Service was due to be adopted on the following day.