Institution of Legal Proceedings against Certain Organs of State Bill; European Convention on Extradition; SADC Protocol against

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
Thursday 15 August 2002
INSTITUTION OF LEGAL PROCEEDINGS AGAINST CERTAIN ORGANS OF STATE BILL; EUROPEAN CONVENTION ON EXTRADITION; SADC PROTOCOL AGAINST CORRUPTION: BRIEFING

Chairperson: Mr Mokoena (ANC)

Documents handed out:
Institution of Legal Proceedings Against Organs of State Bill [B65B-99]
Report of Select Committee of Security and Constitutional Affairs on the SADC Protocol Against Corruption (Appendix 1)
Explanatory memo: Ratification of SADC Protocol against corruption (Appendix 2)
Report of Select Committee of Security and Constitutional Affairs on the European Convention on Extradition (Appendix 3)
Explanatory Memo: Accession to the Council of Europe's Convention on Extradition (Appendix 4)
Second Additional Protocol to the European Convention on Extradition

SUMMARY
The Department of Justice was invited to update the Committee on the SADC Protocol Against Corruption, the Institution of Legal Proceedings Against Organs of State Bill (ILPAOS Bill) and the European Convention on Extradition (ECE).

The Legal Proceedings Bill would ensure that different prescription periods are all dealt with by one Act. There would be a common standard: a three-year prescription period. The Bill would provide one notice period for all debts. If the period is not complied with, the Court will have the power of condonation, but only in the event of good reasons for the failure to comply. As it is a Section 75 Bill, the Select Committee could only review the Bill and the Portfolio Committee would not be obliged to accept any amendments proposed to the Bill. Similarly, the Select Committee could only review the Protocols before it.

MINUTES
Mr Mokoena explained that the Legal Proceedings Bill had come in and out of the Committee. The Bill would finally be dealt with as required. In that regard, Adv De Lange (ANC), the Chairperson of the Portfolio Committee of Justice and Constitutional Affairs, was present at the meeting. With the prior approval of Mr Labuschagne, the floor was then handed over to Adv De Lange.

Institution of Legal Proceedings against Organs of State Bill
Adv De Lange stated that although he had already passed over 100 bills in his eight years in Parliament, the Legal Proceedings Bill was by far the most important. The result was that they would have to be cautious in their endeavors. He explained that the delay was mainly due to the submission from the South African Law Commission. This was followed by the constitutional challenge to many issues that were to be raised in the Bill. Although the conclusions reached were not so helpful, his Committee had felt that it should await these outcomes before proceeding with the Bill.

He noted that the Bill was very complicated because it would affect the fundamental rights of persons as far as civil proceedings are concerned. He said that most countries had prescription periods, with different periods applying to different claims. The apartheid government passed the Prescription Act in 1969. This led to the creation of specific prescription periods for different claims and different Departments, although this was not in line with the Act. He referred to the six month prescription period applicable to the police in terms of the Police Act. In addition, notice requirements had to be satisfied before bringing a claim. The Police Act required that notice be given within approximately five months of the incident, and summons had to be issued one month later.

Adv De Lange explained that this position was significantly altered by our Constitution. Although notice periods would still be required, the Constitutional Court declared that short notice periods were not constitutional. He explained that the SALC had drafted a Bill. However, the problem with the Bill was that still dealt with both prescription and notice period, and application would vary depending on the claim. His Committee found that such a position could not be maintained. The result is that the Bill was amended substantially, in the form that it appeared before the Committee.

Adv De Lange explained that the Bill would seek to do the following:
-Ensure that different prescription periods are all dealt with by one Act. In that regard, he referred to the common standard in a three year prescription period.
-Provide one notice period for all debts. If the period is not complied with, the Court will have the power of condonation, but only in the event of good reasons for the failure to comply.

Adv De Lange stated that one important issue that had changed under the Bill was that the word 'debt' had been redefined to include all types of claims. In addition, the Bill applied to all state organs. Specific authority and Road Agency had also been listed in the Bill. He explained that Clause 1(2) would be very important. It provides that the Act does not apply to any debt that has been extinguished by prescription. This meant that the Act would apply to all past cases in which legal proceedings had not been instituted before the commencement of the Act. He stated that this scenario would be very problematic for transitional arrangements, and that provision would have to be made for this situation.

Ad Part 1
Adv De Lange explained that this part dealt with the prescription aspect of the Act. He stated that all debts to which the Act applied would be governed by prescription period in terms of the Prescription Act. This indicated the extension of individual rights, and he gave an example in that regard. If a person was shot by a police official six months before the Prescription Act came into operation, and legal proceedings had not been yet been instituted, a three year prescription period would apply from the date of coming into operation of the Act.

He explained that the transitional arrangements would then deduct from the three years the time that already been used. The person was shot six months before the Act came into operation. In accordance with the transitional arrangements, one would deduct six months from three years. This means that the person would still have two years and six months prescription time.

Adv De Lange explained that although the procedure was complicated, this was a necessary development. He summarized the position:
-Ending all of Acts and only the Prescription Act applies.
-Ensuring that all persons have a three year prescription period.
-The inclusion of a notice period would mean that the prescription period would not be able to end within the first year of the Act becoming operative.

Ad part 2
Adv De Lange explained that within six months of the Act coming into operation, or of the occurrence of the event, one would have to give notice to the other party that a claim would be instituted. He pointed out that with good reason, a court would have the power to condone the failure to give notice, although the claim would be theoretically extinguished. He stated that this effectively meant that with good reasons, one would have the ability to bring a claim within the three year period. He noted that:
-The notice period would assist the government in regulation events that occur on a daily basis.
-With good reason, the court would have the power to condone the failure to comply with notice requirements.

Adv De Lange stated that these were the essential points of the Bill. He concluded by saying that although the Bill was small in words, it was very difficult as far as the concepts were concerned.

Mr Mokoena thanked Adv De Lange. He gave the officials from the Department the opportunity to raise further points.

Mr Labuschagne went over the documents that he had handed out at the meeting. He explained that [B 65B - 99] was the Bill as passed by the National Assembly, the second included the new amendments since the Bill was passed by the NA, and that the Draft Report needed to be considered by the Committee. He pointed out that because they were dealing with a S 75 Bill ans as such the Committee did not have the power to make amendments and possessed only the power to bring forth proposals.

Discussion
Mr Ralane (ANC) wanted to know whether the dependants of a deceased claimant would be able to bring the claim.

Adv De Lange explained that according to our law, all legal entitlements would vest in the deceased estate upon the death of a person. In this regard, the deceased estate would have the locus standi. Nevertheless, he noted that this could result in evidential problems.

Mr Lever (DP) expressed concern with the wording of Clause 2 (2) (a). He pointed out that the Constitutional Court had declared short notice periods to be unconstitutional, and wanted to know how this would apply.

Adv De Lange referred to the SALC Report and explained that it nicely explained that this was the international best practice. He added that there was a judgement where the Constitutional Court had in principle accepted the granting of notice periods. They had not attempted to challenge that conceptualization, and pointed out that the only problem lay n the shortness and the absoluteness of the notice periods.

Mr Lever referred to Clause 3 and stated that although there was a rationale in allowing a notice period, in certain instances this would be used as a technical tool to throw out claims. What would the state have to claim in order to be put in a better position than other corporations?

Adv De Lange was not sure whether he had fully understood the suggestions made by Mr Lever. Nevertheless, he felt that Mr Lever should read the court judgements that he had referred to. He explained that the prescription period would continue to apply for all laws not declared to be unconstitutional. He stated that this was why his Committee had catered for one situation, this being the case where proceedings had not yet been instituted on the basis of legal law and a failure to institute legal proceedings.

Mr Lever felt that the wrong tense was used in the drafting of Cl 4 (b) (1) (iii).

Adv De Lange told him not to worry about that. He responded that if there was indeed a problem with the tense, this would be looked into.

Ms Kgoali wanted clarification regarding the role of the Committee.

Mr Nyakane wanted to know why provision would be made for both a six month notice period and a three year prescription period.

Adv De Lange explained that they were dealing with two separate periods, namely a notice period and a prescription period. Although they overlapped, one would have to see them as being separate.

Mr Mokoena stated that he was beginning to better understand the Bill.

Mr Maloyi called for the official from the Department to explain the statement that the NCOP would not be able to amend S 75 Bills. He firmly stated that his Constitution did not say that.

Adv De Lange explained that the Constitution made it clear that the NCOP had only a review role when dealing with S 75 matters. Powers of amendment were allowed when dealing with S 76 matters.

Mr Maloyi explained that his bone of contention lay in the fact that the NCOP did possess the power to propose amendments at this stage.

Adv De Lange agreed, and added that it was a review role. Nevertheless, he explained that the difference lay in the fact that the Portfolio Committee would have no obligation to entertain the views raised by the Select Committee.

Mr Mokoena called for the Members to deal with the content of the Bill. He added that such technical matters could be dealt with at a later stage.

Ms Kgoali firmly stated that she found it very wrong for officials from the Department to make such statements to Parliamentarians. Their role in Parliament was to review the process. She repeated that the statement was wrong and called for an apology.

Mr Mokoena pointed out that Mr Labuschagne had agreed with the sentiments expressed by Adv De Lange.

Adv De Lange added that Mr Labuschagne had incorrectly expressed himself.

Mr Mokoena stated that the climate was now conducive to proceed with the questions.

Mr Mkhalipi wanted to know what would happen if, within the three year prescription period, parties conduct settlement negotiations and one of the parties pulls out of the negotiations at a time when it is too late to bring the claim.

Adv De Lange cautioned against this type of scenario. He stated that the opportunity to bring a claim would end upon the fulfillment of the three year period. Consultations between parties would not change legal obligations. Nevertheless, he pointed out that the court power to condone would still exist.

Mr Mkhalipi asked for an explanation of the concept of a delict.

Adv De Lange explained that a delict was either an act or an omission committed either negligently or intentionally and resulting in the harm of another. He added that a distinction in our law existed between contracts (agreements) and delicts.

Mr Matthee pointed out that whilst the Act would be catering for absoluteness, it was not clear whether the shortness problem would be dealt with.

Adv De Lange stated that a failure to comply with the notice period requirements under the previous regime was absolute. However, this Act meant that the six months would not be absolute, thereby retaining the right.

Mr Lever wanted to know whether the difference in terminology between the prescription period and the time bar had been considered in the drafting of the Bill.

Adv De Lange directed Mr Lever to read the schedules with the Bill. He explained that under the previous regime, notices were incorporated into the prescription period. The current position was that although the notice period had been retained, it would no longer be absolute. This highlighted the distinction between the notice period and the prescription period, although both principles would apply. He added that this Act would repeal all past Acts, notwithstanding the fact that a reference to a time bar had been made. He repeated the fact that all debts existing at this stage and not yet extinguished would be extended by this Act. All debts that had already been extinguished would not be resurrected. As such, he could not understand why Mr Lever was worried.

Mr Lever stated that he had been seeking clarification on that matter.

Adv De Lange emphasised that there would be no resurrection of already expired periods.

Mr Lever responded that this still meant that an extension would exist for some and not for others.

Adv De Lange explained that the extension would only be in so far as the debt had not been extinguished. He stated that it would not be possible to ex post facto grant people rights. This meant that the Act would only be able to deal with persons whose rights had not been lost.

Mr Matthee wondered whether, in cases where the claim would not have prescribed according to this Act, the same rights could be afforded to such persons.

Adv De Lange explained that this would mean the resurrection of a non-legality and that this would not be possible. He stated that in terms of our Constitution, a law would remain a law until repealed. Nevertheless, he noted that in theory, all laws could be challenged in the CC. He explained that this Act would only repeal past Acts to the extent that they did not apply to this Act. However, the CC would have to answer all constitutional challenges.

Ms Lubidla asked whether the Act would apply from 1994 or from the date it becomes operative.

Adv De Lange responded that the Act would apply: -
-to all cases existing at the date of this Act coming into operation.
-it was unlikely that cases would go back more than two to three years.

Ms Lubidla explained that she knew of a case that had prescribed as the result of delays caused by the other party.

Adv De Lange stated that this Act would not resurrect extinguished claims.

Mr Mokoena confessed that had he been required to explain the Bill four months ago, he would have stumbled. He stated that today such questions could be put before him. He commended Adv De Lange for the wonders that he had done with the Act.

Mr Maloyi wanted to know how that Committee was going to deal with the draft report.

Mr Mokoena explained that they were yet to discuss the Bill as a Committee. He stated that the Bill would not be finalized in this meeting, and that the Committee would engage in the usual procedures.

Mr Mokoena handed the floor over to Mr Allers in order for him to deal with the Protocols.

SADC Protocol on Corruption
Mr Allers began with the SADC Protocol. After referring to the Explanatory Memo, he outlined the main points contained in each of the Articles in the Protocol. He stated that the Protocol was before the Committee because it was currently open and ready for ratification. He noted that the National Assembly ratified the Protocol on 21 June 2002.

Discussion
Mr Mokoena commented that the Protocol seemed to be impractical.

Mr Allers responded that the Protocol would be possible, and he referred to the introduction of the Prevention of Corruption Bill in that regard.

Mr Maloyi stated that although he was indeed new to the Committee, he had made a request at the last meeting that Members receive all relevant documentation at least twenty four hours before a meeting in order to allow them to engage fully. He said that he would be making the request again for the future.

Mr Nyakane wanted to know how many member states were involved in the Protocol.

Mr Allers responded that the fourteen SADC states had signed the Protocol.

Mr Nyakane referred to state sovereignty and wanted to know whether any mechanisms existed for the enforcement of Protocol rules.

Mr Allers explained that there were specific provisions regarding sovereignty. Nevertheless, he assumed that they would all have equal status.

Ms Kgoali added to the sentiments raised by the previous speaker regarding the availability of the relevant documentation before a meeting. She wanted to know how long the Protocol had been in the National Assembly because they were receiving it a year late.

Mr Allers explained that the Minister of Justice approved tabling the Protocol for discussion on 4 December 2001, and that this was during Parliamentary recess. He added that there had also been difficulties in placing the Protocol on the agenda. The Protocol was tabled on 14 March 2002 and the NA ratified it on 21 June 2002. This served to show that the Protocol had gone through a process.

Mr Mokoena stated that he had taken note of the comment made by Mr Maloyi. However, he was not able to respond regarding when the documents had been made available to the Committee. Nevertheless, he called on the Committee to decide whether to defer the passing of the Protocol to the next meeting. He noted that that was not any pressure for them to agree to the Protocol in the present meeting.

Mr Ralane wanted to know whether the Protocol made provision for prospective actions. He gave the example of cross-border escapes, and wanted to know to what extent such matters were covered.

Mr Allers replied that Article 5 made provision for cross-border movements. He pointed out that the Protocol would not apply retrospectively.

Mr Ralane asked whether there were any enforcement mechanisms.

Mr Allers pointed out that this would be difficult to answer. Nevertheless, he stated that Article 7 made provision for such situations. He referred to paragraph 2 of Article 7, dealing with the adoption of 'legislative or other measures'.

Mr Lever stated that the crime in Cl 3 (1) (a) had not been well defined. This was a huge mistake because the definition turned on the facts that the Committee would seek to ratify.

Mr Allers explained that the definition of a public official in terms of Article 1 would probably include the Head of State.

Mr Nyakane endorsed the concerns relating to the availability of documentation. He firmly stated that they would be binding our county at the end of the day. As such, he proposed that the Committee not rush the matter.

Mr Mokoena wanted to know how urgent the Protocol was.

Mr Allers responded that time was not a problem. He explained that the Department was not the guilty party as far as the documentation because they were responding to the request of the Committee to make the presentation. He stated that the Bill on corruption would probably be more urgent in comparison.

Mr Mokoena stated that the Committee clerk did not do anything wrong. He explained that she contacted the Department at the request of the Committee. Nevertheless, he said that the passing of the Protocol would probably have to be deferred.

Ms Lubidla felt that the Protocol was very important. As such, she could not see any problems with passing it during the present meeting.

Mr Mkhalipi congratulated Mr Allers for the presentation. He agreed with the proposal made by Mr Nyakane.

Ms Lubidla explained that she did not mean that the Committee should vote at this stage.

Mr Maloyi proposed that given the fact that the Committee agreed to defer the passing of the Protocol, they allow Mr Allers to continue with his presentations. He added that the deliberations would begin in the following week.

Mr Ralane cautioned the Committee not to labour with the aim of amending the Protocol. He emphasized the fact that the Committee would not be able to amend the document.

Mr Mokoena agreed. He added that the President would either ratify the Protocol or not.

Mr Mokoena pointed out that they were done with this Protocol and asked Mr Allers to proceed.

European Convention on Extradition
Mr Allers explained that an important element of the Convention would be to obviate the need for separate bilateral agreements between countries. He referred the Committee to the important Articles, namely: -
- Extraditable offences in terms of Article 2. He added that it was because of this provision that paragraph 1 of the Draft Report suggested that for the purposes of Article 2, a 6month period should be used in accordance with the South African Act, as opposed to the stipulated 4month period.
- Article 6 empowers contracting parties to refuse to extradite a wanted person. He referred the Committee to sub-paragraph 2 of the Draft Report which explained that a 'national' would be defined in terms of the South African legal system.
He explained that as far as the other provisions were concerned, they were similar to provisions that had already been ratified or considered in South African extradition treaties.

Discussion
Mr Lever wanted to know whether there the Convention would include specific exclusions regarding the death penalty.

Mr Allers responded affirmatively. He referred the Committee to Article 1 in that regard.

Mr Mokoena referred to point 4.2 in Article 6 and wanted to know the possible grounds for refusal.

Mr Allers stated that he could not answer that question. He added that it was for this reason that the aim would be to ensure the co-operation of the South African government in extradition matters as far as possible in order to establish good relations.

Mr Sulliman wanted to know what would happen in the event that a person sought under a valid extradition order enters the Republic.

Mr Allers explained that the matter would go through the relevant process and that the situation would not be a problem for our country. He stated that necessary extraditions would occur. He noted that 44 countries had already ratified the Convention thereby meaning that ratification by South Africa would immediately result in extradition treaties with all 44 countries.

Mr Allers agreed. He stated that the Additional and the Second Additional Protocols were only supplementary documents, including merely the addition of technical points.

Mr Maloyi wanted to know the powers that the South African Parliament possessed in relation to the Protocols. In particular, he wanted to know whether it would be possible to amend the Protocols.

Mr Allers explained that Parliament would not be able to amend the Protocols. He stated that the Chairperson had correctly explained that the President had the power to either ratify the Protocols or not to ratify them. He noted that the EU Convention made provision for declarations thereby allowing a country to ratify subject to the declaration.

Mr Mokoena felt that the Committee had done justice to the Protocols.

The meeting was adjourned.

Appendix 1:
PARLIAMENT