Magistrates Commission updates; Legal Practice Bill: NCOP amendments; Committee Legacy Report

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Justice and Correctional Services

11 March 2014
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Magistrates Commission (MC) briefed the Committee on the request to confirm the provisional suspension of magistrate Mr M Kgomo. Mr Kgomo had allegedly demanded and received R150 000 in return for a promise to positively influence the outcome of an appeal for extradition, involving a foreigner who was charged, outside South Africa, with corruption charges involving R20 million. The money paid to Mr Kgomo was found in his own briefcase, in his presence and he was charged with corruption and granted bail. Whilst Members agreed with the provisional suspension, they were dismayed to hear that not only had the original docket in the case against Mr Kgomo gone missing, when the investigating officer in the case had been hijacked, but the computerised records had also been erased. They questioned whether the MC had raised the matter, debated whether it was the MC or National Prosecuting Authority that needed to take up the matter, and suggested that the MC should report the matter to the Investigating Directorate for Priority Crimes. They further asked for the docket numbers so that this Committee could raise the issue with the Portfolio Committee on Police. During the deliberations on this and other cases, Members also raised questions whether the MC should not take a bolder stance on withholding remuneration, to try to dissuade magistrates from using substantial delaying tactics.

The progress in the other pending matters, against other magistrates who were already suspended, was described. In the case of Mr M Masinga, the MC now confirmed that the “review” questioned by the Committee related to the criminal case, where Mr Masinga had raised a technicality about the ability of the prosecutor to prosecute him. His disciplinary inquiry was ongoing. In the J van Schalkwyk matter, a date for the hearing would be set once the attempt to limit the issues in dispute had been dealt with. In the inquiry against Mr I Morake, there had been substantial delays, largely caused by the loss of and need to reconstruct the criminal trial record, in order to deal with the appeal. This was another matter that Members decided must be raised with the Portfolio Committee on Police, and the concerns about missing dockets noted in the Committee’s Legacy Report. The disciplinary inquiry against Mr T Rambau was again postponed after the first witness had testified, because Mr Rambau had come with another medical certificate, and no new date had yet been set as in the meantime he was now also disputing the authenticity of the evidence led at the criminal trial, upon which the MC had hoped to rely, without the need to cross-examine all the witnesses again. One Member wondered if disciplinary inquiries should be running simultaneously with criminal trials, but the MC and other Members pointed out that they were two separate processes, without conflict, and this attempted to get the disciplinary processes finalised. Another Member commented that the extensive delaying tactics were doing no good to the public perceptions about justice. Members thought that, given the extensive delays caused by Mr Rambau, he must be asked again to furnish reasons why his remuneration should not be withheld. Members then raised questions on whether Mr Hole, whose suspension had been lifted temporarily, was attending expeditiously to the part-heard matters and were advised that a report would be sent to the Committee, once approved by the Minister. The Committee expressed appreciation to the Magistrates Commission for its work.

The proposals made by the NCOP for amendment of the Legal Practice Bill were then tabled and explained to the Committee. Seven provinces voted in favour of the Bill, although one Member raised her concerns that the process in the KwaZulu Natal Provincial Legislature was alleged to have been faulty. It was suggested that this must be taken up directly with that legislature.

The NCOP had suggested that three new definitions be added – for “Republic”, “state advocate” and “state attorney” into clause 1. Clarity was sought, but there was no specific objection to those. In clause 29, the word “practicing” should be inserted into clause 29(1)(b) which dealt with requirements for community service. Only one Member suggested that this was worsening the position for that clause. Some typographical errors were corrected. In clause 93, the NCOP had suggested that, instead of using the phrase”is guilty of an offence” the phrase “commits an offence” should be used. Some Members were opposed to the change, as they believed that it did not create certainty, believed that “commits” was quite different from “is guilty”, and pointed out that this wording had been used consistently in other pieces of legislation, and followed the standard format of charge sheets. Others felt that its use in the past was no guarantee that it was correct, and countered that the new wording was not uncertain because of the juxtaposition of “commits” and “upon conviction”, which clearly implied that other processes must follow the commission of the offence. The State Law Advisers explained that the NCOP had suggested that “is guilty” ran counter to the Constitutional principle of presumption of innocence.

This led on to a discussion on the process, as it was pointed out that if the proposals of the NCOP were not accepted, the matter would need to be referred for mediation. One Member said that there probably was still time to do so but stressed that time constraints should not distract this Committee from giving its full consideration to the issues. Several Members suggested some practical solutions; one was to leave the matter to judicial interpretation, another was to pass the proposals but draw the attention of the incoming Committee to the point that it may wish to amend that wording while the Legal Practice Council was still being set up, and another was to use the suggested wording now, in this Bill, but to have a full debate on what would be appropriate for future bills in the Fifth Parliament. The Parliamentary Legal Adviser pointed out that Parliament was creating a new offence by way of these clauses.

The other proposals were essentially of a technical nature. Clause 117 was being amended to ensure that the heading and content (removing the reference to voluntary associations of advocates) were consistent, although one DA member did not support the removal of the words. The reference to “national territory” was changed to “Republic” in the preamble 

On a vote, four ANC Members voted in favour of the adoption of the proposals and the revised Bill and three (two from the DA and one from ACDP) voted against. The draft Report was similarly adopted by the majority.

The Committee discussed and resolved to approve, with amendments, the Legacy Report. Matters highlighted for the incoming Committee included the process for Private Members’ Bills and a suggestion that the interim Parliamentary Rules be amended to address what were seen as shortcomings, the interrogation of policy on insolvency practitioners, the Department’s unhappiness with maintenance and repair of court buildings, which the incoming Committee perhaps should take up directly with the Department of Public Works, and the points raised earlier on disciplinary inquiries against magistrates.

Meeting report

Magistrates Commission reports
Request to confirm provisional suspension of Mr M Kgomo

Mr Andre Louw, Magistrate, Magistrates Commission, presented the request for confirmation of the provisional suspension of Mr M Kgomo, Additional Magistrate at Randburg. He was arrested on 5 December 2013 and appeared at the Regional Court on the following day, on a charge of corruption. It was alleged that he had demanded and received R150 000 in return for positively influencing the outcome of an appeal for extradition, involving a foreigner whose extradition was sought in relation to corruption charges of R20 million. The money was found in the magistrate’s briefcase, in his presence and in his office and he was charged. The court, on 9 December, granted him bail.

The Magistrates Commission (MC) afforded him the opportunity to give reasons why disciplinary charges should not be preferred against him, and resolved that the existing evidence was so serious as to justify his removal from office, should he be found guilty.

Mr Louw noted that the inquiry was set to commence, but there were challenges because the investigating officer in the criminal matter against Mr Kgomo was hijacked while he had the docket in his possession and the docket had disappeared. When an attempt was made to trace the matter from the computerised records it was found that the computerized record no longer existed either. The MC was looking into the matter.

Mr L Landers (ANC) questioned why the MC was “looking into” the matter of the records that had disappeared, asking if it in fact had capacity to do so. He also sought clarification whether the money was actually recovered from the briefcase of Mr Kgomo.

Mr Louw confirmed that the R150 000 had been actually handed over to Mr Kgomo, and the police had found it in his office and in his presence shortly after that.

Ms D Schäfer (DA) asked at what point magistrates were deprived of remuneration whilst under suspension.

Mr Louw answered that this was normally done only after they had been found guilty of an offence, or if there was undue delay caused by the magistrate to the disciplinary inquiry process, but the MC had not reached this point yet.

Ms Schäfer asked if the criminal matters arising from the incidents had been referred to the South African Police Service (SAPS).

Mr Louw said that the MC was trying to find out the progress of the criminal case and who was dealing with it, as distinct from investigating the matter itself.

Ms Schäfer questioned whether the SAPS was dealing with how the docket was lost.

Mr Louw said that the investigating officer was hijacked, but it was not known how the matters got off the SAPS system.

Mr S Swart (ACDP) agreed that these last two issues were not within the mandate of the MC, but he thought there was a strange confluence of circumstances around the hijacking and the removal of information from the system. The whole point of attempting to set up the integrated Criminal Justice System was precisely to avoid losses of this sort, as well as a reliable computerized system. He was worried about the implications of collusion that this raised. He felt that this was an issue that Parliament would need look into. The fact that the person whose extradition was sought was apparently involved in corruption of R20 million was an aggravating factor. Parliament had to take a stand for justice. He suggested that the Chairperson should raise the matter with his counterpart on the Portfolio Committee on Police.

He fully supported the recommendation to suspend Mr Kgomo, but said there was a need to monitor the matter very closely. He was worried about the litany behind many of the cases in the past, but this was seeming to set a new and worrying level on corruption.

The Chairperson asked whether, in relation to the removal of information from the SAPS computerised records, any charges had been laid.

Mr Louw misunderstood the question and said a docket number was assigned to the bail application for Mr Kgomo.

The Chairperson clarified that this was a separate issue. He was asking whether any investigations were being done by SAPS into how information was removed from the computer.

Ms Schäfer clarified that a criminal charge was laid against Mr Kgomo for the R150 000 bribe. The MC must monitor in detail what happened to the case. The fact that the docket was lost in the hijacking clearly highlighted the need to have computerized systems so that case information should not be lost and also supported the concerns of this Committee that it was not yet properly implemented. The fact of the hijacking and non-existence of the computer records were allowing cases such as this, of serious corruption.

Ms C Pilane-Majake (ANC) supported the recommendation of the MC to provisionally suspend Mr Kgomo. She thought that the other information about the loss of information from the system must be reported to the Investigative Directorate for Priority Crimes (IPID) so that it could be properly investigated.

Dr M Motshekga (ANC) commented that it was a little unfair of the MC to essentially bring three cases in one before the Committee. He asked if there were any suspects in relation to the removal of information from the system. He thought that the MC needed to clarify that point. Secondly, he wanted more information on the hijacking that had resulted in the loss of the docket.

The Chairperson asked that the MC obtain the docket number in relation to the charges against Mr Kgomo, as this would be required before he could raise the matter to the Portfolio Committee on Police. He secondly commented that surely, when the investigating officer was hijacked, he too had laid a charge. If not, he must be asked to explain why not. A docket number in respect of the hijacking was also needed. Thirdly, the MC should be following up whether any case was opened relating to the removal of information from the SAPS system.

The Chairperson said that a formal decision would be taken once there was a quorum.

Progress report on suspension and disciplinary inquiry against Mr M Masinga
Mr Louw reminded Members that Mr Masinga had been charged with assault on his wife and daughter with an axe, and had been found guilty on two charges on 23 May 2011. He had appealed, and that was still pending. Disciplinary charges were laid also by the MC. In respect of those, the Presiding Officer in the disciplinary matter (for his removal on the charges of misconduct) had heard a plea in relation to aggravating circumstances, and sanction was to be imposed by 21 March 2014. Mr Masinga was not receiving remuneration.

Mr Louw reminded the Committee that at the previous meeting questions had been asked why the appeal case had been referred for “review”. It appeared that Mr Masinga had claimed that he had been wrongly prosecuted, since the Prosecutor was apparently not in possession of a certificate from the Director of Public Prosecutions. Normally a certificate was issued in respect of prosecutions involving a magistrate. This was the matter taken on review. However, it was apparently not a legal, but a purely internal requirement. It related to the criminal matter, not the MC inquiry.

Progress report on suspension and disciplinary inquiry against Ms J van Schalkwyk
Mr Meijer said that Ms van Schalkwyk had been charged on 24 counts of misconduct and was presently suspended. Her defence attorneys had requested, from the MC, about 200 further particulars relating to the 24 counts. These were being compiled formally, but in the meantime all the documentation had been disclosed also to her defence attorneys, in an attempt to settle and limit the issues in dispute. A date for the hearing would be set.

Ms Schäfer said that she had raised an objection also to the person leading evidence before the inquiry and asked for some more clarity on that.

Mr Meijer said that this was a dispute that needed to be decided upon not by the MC, but by the presiding officer at the inquiry. Ms van Schalkwyk had claimed that she had served together with, and knew the person leading evidence quite well and that he would be biased. The MC counter-argument was that there was no substance to that claim.

Mr Swart did not understand the objection. This person was merely leading evidence, in a similar position to a prosecutor, and was not the presiding officer. He had never heard of such an objection.

Dr Motshekga agreed that whilst this might be the legal position, he believed that justice had to be sensitive to the perceptions of ordinary people. Neither her allegation nor the assumption of the Magistrates Commission were based on fact.

The Chairperson and Mr Swart pointed out that there would be an argument at the hearing to support or dispel the suspicions of bias.

Progress report on suspension and disciplinary inquiry against Mr I Morake
Mr Meijer reminded the Committee that Mr Morake was charged with six cases of misconduct based on his threats to various people that he would be able to influence the results of various matters Mr Morake had been provisionally suspended from 4 November 2010. He had been convicted criminally on three charges of theft, but had appealed. He was charged on six counts of misconduct. Further evidence from the MC witnesses had been led in July 2013. The matter was postponed to November and there was engagement to limit the disputes. It had then been postponed for hearing and argument on the remaining charges. The MC was trying to get an interpreter for one of the charges involving a Bangladesh national. He was not receiving any remuneration.

Mr S Holomisa (ANC) asked what the status of his appeal was, following the criminal conviction.

Mr Meijer reported that the recordings in the matter had gone missing. The reconstruction of the record was being attended to and the MC was urging the presiding officer in the criminal matter to finalise this aspect, so that Mr Morake’s Leave to Appeal could be properly decided upon.

Dr Motshekga asked whether the MC had followed up on the missing information in this case.

Mr Meijer said that the MC had previously told the Committee that the MC had made arrangements for the dockets in the matters to be seized from the police station at Lichtenburg, but when the files were handed over, the contents were missing. SAPS said that they would look into the matter.

Dr Motshekga suggested that this was another matter that needed to be raised by the Chairperson with the Portfolio Committee on Police. There should be an investigation into the missing dockets.

The Chairperson asked who should be laying a case in respect of missing information or dockets. It was highly unlikely that SAPS would attend to this, and he thought the MC should “somehow see to it” that it was specifically reported that parts of the docket were missing.

Mr Louw suggested that perhaps it was appropriate for the National Prosecuting Authority to do so, as this entity was supposed to get the dockets from SAPS to decide on prosecution.

Dr Motshekga said it was of concern that when dockets were lost, given that SAPS did not investigate, the matters would never be followed through. There was a need to get clarity on how matters were to be brought to finality.

The Chairperson agreed and said that the fact that magistrates were involved made this matter particularly serious. If the media had been present at this meeting, there could have been an outcry about this.

Ms Schäfer thought that the NPA should be involved, but she was not sure that it would share her view. She believed it was correct for the MC to lay a charge and follow up on it. She asked what it had actually done.

Mr Meijer said that concerns were raised with the Branch Commander and the case numbers were provided, but this was probably a couple of years ago.

Dr Motshekga also believed that there was a duty on the Magistrates Commission to make a follow up and report it back to the Committee. It was not enough to say that this was raised as a concern. It was a matter involving the operation of the law.

Ms Schäfer thought that these kinds of matters should also be included in the legacy reports to the new Parliament. This Committee would be within its powers to call SAPS in to explain the matters.

The Chairperson asked that details of this docket number also be forwarded to the Committee, for follow-up with the Portfolio Committee on Police.

Progress report on suspension and disciplinary inquiry against Mr T Rambau
Mr Meijer reported, as set out on page 3 of the documents relating to Mr Rambau, that Mr Rambau had been provisionally suspended in November 2010. A new date had been set for the disciplinary inquiry to continue, in March 2013, and a new attorney was placed on record and was appointed on 15 July 2013. This attorney had been given all records to enable him to continue. By agreement, the matter was postponed for pre-trial conference, which was held on 9 December. A date was set for 17 February. On that date, Mr Rambau entered a plea of not guilty. The first witness for the MC had testified but the matter was then postponed for cross-examination, despite objection by the MC. It would proceed on 5 March.

A later development was that Mr Rambau was now, at the disciplinary inquiry, disputing the authenticity of the evidence led at the criminal trial, an objection that he had not raised at the criminal trial itself. The recordings were obtained from a trap. The MC was trying to persuade the Presiding Officer in the inquiry simply to accept the transcript of the criminal trial as a correct record of the proceedings, to avoid having to call all the same witnesses again and leading their evidence again. The Presiding Officer wanted to study all the documents. No new date had been set for continuation of the inquiry.

Mr Meijer further added that Mr Rambau was one of the three accused in the criminal trial. There had been a litany of in limine applications. Mr Rambau had requested the judicial officer at the criminal trial to recuse himself, and, when that application was dismissed, too the matter on review to the High Court. He also claimed numerous other irregularities. He had brought a section 174 application. The State’s case had been closed in the criminal trial and that was why the MC simply wanted to use the record that far for its inquiry. Mr Rambau claimed that none of the delays were caused by him, asserting that he had every right to refer matters to the High Court.

Mr Meijer said that this was a particularly difficult and complex matter and Mr Rambau was apparently determined to dispute every single aspect of the case.

Ms Pilane-Majake was worried about holding the disciplinary inquiry on a matter that was still before the Court. She wondered if it should not be held back. It was also important to look at whether Mr Rambau should still be receiving remuneration, as she felt that this might be one way to counter his delaying tactics.

Mr Meijer said that the disciplinary process must be seen as distinct from the criminal trial. The MC had decided that it was not in fact necessary to await the outcome of a criminal matter before commencing with the disciplinary inquiry, and that was why the disciplinary inquiry had been started. However, it would be difficult if all the evidence of all the state witnesses in the criminal trial had to be led again before the inquiry. It was difficult to suspend Mr Rambau’s remuneration without very good reason, and, as set out, Mr Rambau denied that he was unreasonably delaying the matter. He had not been found guilty in the criminal trial either.

Ms Schäfer firstly commented, to Ms Pilane-Majake, that whilst she understood her comment and concern about the two matters running concurrently, this had been a thorny issue that the Committee had discussed before she had joined the Committee. She urged the MC not to return to its previous position when it had held matters back.

Dr Moshekga agreed that the two processes were different, and the disciplinary matters went to the fitness and propriety of a person to hold office. He also thought that disciplinary matters should be finalised as soon as possible. At the moment, there appeared to be paralysis, and he questioned how the public could feel confident when one person was essentially able to hold a system to hostage. Commenting on the remuneration, he wondered whether the remuneration should not be held back; if the outcome of the criminal matter were such that this was later found unreasonable it would be possible to repay him what he should have been receiving. He added that if he was being paid now, and the indications were later that his pay should have been withheld, there was no likelihood of getting that money returned.

Ms Schäfer believed that this was a case in which the remuneration should be suspended, for she thought there were good reasons as he was clearly delaying the criminal and civil matters. She suggested that a firm stance should be taken, and Mr Rambau must take the MC to court if he wished.

Mr Meijer agreed that the MC could again ask Mr Rambau to submit reasons why his remuneration should not be withheld. The MC had argued in the first place that he should continue to be paid. He would convey the Committee’s concerns to the MC.

Other concerns
Ms Schäfer wanted to raise another point. She felt that the Committee perhaps did not appreciate the amount of work done by the MC, and wanted to convey appreciation for it. The Department of Justice and Constitutional Development (the Department) had been promising to get more staff for the MC, but this had not yet happened, and they were under huge pressure.

The Chairperson agreed and echoed her appreciation on behalf of this whole Committee. The matters were particularly difficult because they involved lawyers sitting on the Bench, who had acquired expertise in how to delay matters.

Dr Motshekga thought that, as par of the transformation of law, it would be useful to consider the spirit of the law, not always concentrate on a strict legalistic interpretation. The spirit of the law would give consideration to public perceptions. If the public ceased to respect processes, because of negative perceptions this would put the system into crisis.

Mr S Holomisa (ANC) also supported the sentiments expressed by Ms Schäfer.

Mr P Hole
Mr Holomisa then asked if the MC was in a position to report back on Mr P Hole, whose suspension had been lifted to allow him to finish cases that were part-heard. His disciplinary processes were supposed to have taken place in December, and he asked for a further report on those.

Mr Meijer confirmed that there was a report on this that had been sent to the Minister, two weeks ago, and once approved it would also be furnished to the Committee.

Mr Louw added that Mr Hole was busy finalising the provisional matters, and more than half had already been finalised. The misconduct matter was part-heard, and there had been considerable delays. At this stage, Mr Hole was unrepresented. He had applied for the refusal of the entire Magistrates Commission, but that application of his was dismissed. He had brought several applications for remands that were denied. On the last occasion, while a witness was being led, Mr Hole had asked that the matter stand down and had then visited a doctor and furnished a doctor’s certificate, so the inquiry had had to be postponed. It was now was set down from 14 to 16 May.

The Chairperson reminded the MC that this Committee had resolved that it must be sent regular reports on the cases, and Mr Louw confirmed that they would be sent on.

Ms Pilane-Majake asked how the progress of the cases was being monitored, so that the matters did not drag out.

Mr Louw repeated that the report on the cases was with the Minister for approval. He displayed a draft, in the form of a schedule setting out each of the cases.

Mr Meijer said that this was a separate report on the progress of the part-heard cases. He asked if this should be tabled simultaneously with other reports.

The Chairperson clarified that the reason why the Committee had asked for the MC to give regular updates on each of the part-heard matters was to check that he was not delaying each of those matters to delay his suspension becoming operative.

Mr Louw said that 15 of the original 26 matters had been finalised by Mr Hole.

Mr Holomisa said that this seemed commendable. He reminded Members that another of the conditions around the lifting of the suspension was that he should not display the same conduct to his fellow officers of the court and he asked whether this too was being monitored.

Mr Louw said that the MC was not aware of any new complaints. There was no direct liaison between the two individuals that had been the cause of the suspension. Although there was another Chief Magistrate in Mr Hole’s office, it appeared that there was no problem.

The Chairperson asked that Mr Meijer convey its good wishes to the Chairperson and all of the Members of the Magistrates Commission.

Adoption of draft Report on Magistrate Kgomo
A report was handed out to Members. Some grammatical corrections were made. The Chairperson pointed out that paragraph 4 should be preceded by the words: “The Commission is of the view that it is inappropriate…”

Members unanimously adopted the Report, as amended

Legal Practice Bill: Proposed amendments by NCOP: Department of Justice and Constitutional Development briefing
The Chairperson noted that the Legal Practice Bill had been referred back to the NA by the NCOP, with some amendments.

Mr Jacob Skosana, State Law Adviser, Department of Justice and Constitutional Development, reported that there had been some difficult times during the provincial hearings on the Bill. However, the Bill had sustained the format as decided upon by the NA. Some comments received from one province went to the format of the Legal Practice Council (the Council) but they were not sustained during debates in the NCOP. The changes that were summarised in the document (see attached document) basically represented the resolution of seven provinces who had voted in favour of the Bill; Western Cape voted against it, and KwaZulu Natal abstained and did not send through a final mandate because of timing.

He noted that the State Law Advisers and Parliamentary Law Advisers had worked with the Department during the process.

Ms Wilma Louw, State Law Adviser, Department of Justice and Constitutional Development, took Members through the attached Select Committee Amendments to the Bill.

Three new definitions were inserted into clause 1: for “Republic”, “state advocate” and “state attorney”. She read them out.

In clause 29, on page 19 of the B-version of the Bill, the word “practicing” was inserted into clause 29(1)(b). This related to the requirements for community service by practicing legal practitioners, upon which their continued enrolment was dependent.

Ms M Smuts (DA) said that this made a bad clause worse.

Ms Louw continued that in clause 29(2) a typographical numbering error was being corrected.

In clause 50, on page 32, the spelling of the word “judge” was being corrected.

In clause 93, on page 49, in each of the subsections, the wording “is guilty of” was to be changed to “commits”. She read out how one of the new clauses would then read. She submitted that this was a change of expression only and did not really change the meaning of the clause. She asked whether Members wanted her to read each of the clauses with that new wording, but the Chairperson thought it not necessary.

In clause 117 he wording “and voluntary associations of advocates” was to be omitted, to bring the heading and content of the clause in line with each other.

The table of contents then also needed to be changed, to reflect the change to clause 117.

In the Preamble, on page 2, the phrase “national territory” was changed to “Republic”.

(The discussions on each topic have been grouped together, for purposes of clarity, in this report)

New definitions
Ms Schäfer asked if the insertion of the definitions of state attorney and state advocate had made any significant change to the Bill.

Ms Smuts noted that there had been a submission from one of the provinces on this point, to which the Department had apparently agreed. However, she asked for clarity as there had been a specific reason why they had not been defined by this Committee.

Mr Swart reminded Members that the reasoning in this Committee was that these two categories were civil servants, subject to the Public Service Act and not falling under the purview of the Bill, which dealt essentially with practicing practitioners.

Mr Skosana said that the Bill did in fact make reference to state attorneys and state advocates, in clauses 34 and 84. They were defined in other pieces of legislation but it did no harm to include definitions here too.

Mr Holomisa had thought that it might help to take each of the matters separately. did not have a problem with state advocate and state attorney.

Procedural matters
The Chairperson noted that any amendments brought by the NCOP would be binding unless the NA wanted to challenge them, in which case the Bill would have to go for mediation, which would hold back the process of final approval on the Bill.

Dr Motshekga thought it not necessary to delay the Bill. However he stressed that the intention of the legislature was not to create absurdity. He believed that it was not legally certain to state that anyone “committing an offence” should be precluded from doing something.

Ms Smuts commented that she would have no problem in holding back the process of the Bill. She had read, with interest, the views expressed by the KwaZulu Natal legislature, who had take a position similar to the DA and had originally expressed itself as in favour of having two chambers in the Council – one for advocates and one for attorneys. Suddenly, there seemed to have been intervention from the national sphere and something went wrong. Mr A Lees, a DA Member in the KwaZulu Natal Provincial Legislature said that he was present alone, but he was ruled out of order when he tried to vote on the matter. He had said that the KwaZulu Natal legislature never gave its final mandate because although its relevant committee sat, that committee’s Chairperson, Mr Ntuli, did not sign off on the Bill as he decided it was a good piece of legislation. According to Mr Lees, the Province did not vote for the Bill as a legislature. He had suggested that all of this was procedurally problematic.

The Chairperson wanted to address the point about the procedure, and said that the only requirement, as he understood it, was that five provinces must agree, and this had been done, for a Bill to be passed in the NCOP. He had seen the article also that Ms Smuts was referring to. He thought that Mr Lees should take up the matter of suspected procedural irregularity with the KwaZulu Natal legislature.

Ms Schäfer wanted to make the point that some serious concerns were being raised about the proposals, and she believed that it was the job of this Committee to give serious consideration to them. Mediation could be held within 30 days and shortage of time should not, to her mind, be a limiting factor.

In relation to the process, she said that section 65 of the Constitution said that each Province had one vote, cast on behalf of the province by its delegation. It was being alleged that KwaZulu Natal was not given a vote on the day that it was taken.

The Chairperson said that they did not exercise their vote, and this was not the first time it had happened.

Discussion on the phrases ”is guilty of an offence” and “commits an offence”, and process
Ms Schäfer did not agree with the conclusion of the Department that there was no difference in the phrases “is guilty of an offence” and “commits an offence”. The use of “commits an offence” was far less clear, whereas “is guilty of an offence” clearly implied a finding to that effect by the Court.

Mr S Swart (ACDP) said that the same points had been raised during the debates around the Protection of State Information Bill, and Parliament had been very careful about the wording that it used in that Bill. Certainly in the recent past, it had been standard drafting practice to use the phrase “is guilty of an offence”.

Dr Motshekga said that it was important to remember that suggested changes to language perhaps resulted from lay persons giving their views (which was essential) but he believed that the final formulation and language must be in line with accepted legal terminology. It was important to put this into context. The legal effect of “committing an offence” - or being suspected of having done so – was not the same as “being found guilty of an offence”, which implied that there was more certainty.

Ms Smuts was opposed to the replacement of “is guilty of” with “commits”.

Mr Holomisa did not share the views of his colleagues that “commits an offence” raised any difficulties in interpretation. He believed that the matter could, in any event, be resolved, if necessary, by interpretation through the courts. He did not agree that the fact that “is guilty of” had been used in the past was any reason to follow the same path dogmatically in the future. This Committee should be applying its mind carefully to the issues. It may be that Parliament was incorrect in its formulation in the past. He wanted to know the reasoning of the NCOP for the change.

Mr Holomisa added that even if “commits” was used, it must be read in context, for the phrase was followed by “and is liable, on conviction, to a fine”. That implied that the court would still have to make a finding. He would have thought that the objection was rather that it was not for a statute to specify who was guilty, but for a court to make that “guilty” finding.

The Chairperson said he heard the points but said that Members were now saying effectively that Parliament may have erred in the large body of statutes made previously.

Mr Holomisa said that this was irrelevant to the current consideration.

The Chairperson personally thought that perhaps the advice given to the NCOP was incorrect. For so many years, the phrase “is guilty of an offence” was used in the statutes, and he had not heard any good reason to depart from that.

Ms Pilane-Majake wanted to endorse that, and agreed that making a decision on the word “commits” may be difficult, although she took Mr Holomisa’s point and the “and, on conviction” did indicate that more needed to happen in the process.

Mr Swart thought the matter could be resolved quickly, by saying in the Committee Report that the Justice Portfolio Committee had always used “is guilty of”. He reminded Members that the problem in the Prins matter was that an offence had not actually been created by the section in the Sexual Offences Act, and Parliament had quickly amended the matter. He said that legal certainty must be obtained, and he did not think the Bill needed to be delayed. He agreed that justification must be heard before the conviction followed, and suggested that this was a grammatical matter, not one of principle.

However, he pointed out his concern that it related to quite serious clauses. The clauses gave the Council the power to suspend practitioners from practice, which was quite drastic. He did think that the use of “who commits” was suggesting a lower standard of proof than “is guilty of” (which implied a criminal trial) and he was concerned that this could be very prejudicial to legal practitioners. He believed, like Ms Schäfer, that it may still be possible to meet with the NCOP to decide the issue.

The Chairperson raised another practical consideration. The Forum was already being given a period of up to three years to decide exactly how the profession would be running, so there was plenty of time in that period to deal with any amendments that the Fifth Parliament and new Committee might wish to. He had a strong view on this point, and believed that the particular amendment proposed was incorrect, but for practical reasons he believed that this Committee should accede to the proposals for this Bill, but that the incoming committee must look more carefully at the wording of future bills.

Dr Motshekga noted the conflicting views, but also agreed that there did not seem to be a problem. He repeated that the rules of interpretation said that presiding officers must, when interpreting statutes, work from the assumption that Parliament did not intend any absurdity. To suggest that “commit an offence” meant something different from “guilty of an offence” would, in his view, lead to absurdity. He believed that the proposals should be allowed to stand and there was no need to refer the matter to arbitration.

The Chairperson mentioned that he had had occasion to hold discussions with the Chairperson of the Select Committee on Security and Constitutional Development. When the Departmental officials appeared before that committee, they had been roundly interrogated, and he had pointed out that it was the Portfolio Committee, and not the officials, who were responsible for the B version of the Bill. That was now clearly accepted and understood. With that comment in mind, and without wanting to put the officials in a difficult spot, he asked if they were able to indicate any reasons of the NCOP for proposing these changes.

Mr Skosana said that the matter was extensively debated. He pointed out that, firstly, “commits” in the present tense was being used, and that suggested that due process would indeed need to be followed before reaching the “upon conviction” end result. He pointed out that when prosecutors presented charge sheets, these were worded along the lines of “A is guilty of an offence, in that he did X, Y and Z…” and it was clearly understood that whilst the allegation was made, the presumption of innocence remained until A was proven guilty by due process. He took the point that in future perhaps more thought should be given to the point. However, he did not think that either of the wordings would be harmful to the rule of law and presumption of innocence. He agreed with the Chairperson’s indication that, if deemed necessary, the wording could be “cleaned up” in the intervening period.

Mr Mongameli Kweta, State Law Adviser, Office of the Chief State Law Adviser, said that one of the provinces had, during the NCOP process, raised the point that using the phrase “is guilty of an offence” appeared to be a violation of the Constitutional’ presumption of innocence. The NCOP majority decided to play on the safe side and change the wording to “commits... and is liable on conviction”.  He believed that there was nothing incorrect with this new wording, although the previous wording was indeed used for many years in the past.

Ms Phumelele Ngema, Parliamentary Legal Adviser, said that the design of the Constitution must be considered. There was a clear distinction made between section 165, which dealt with judicial authority, and the sections that conferred legislative authority on Parliament. By writing “commits an offence” into a statute, Parliament was creating an offence. However, the judicial authority still had to look at the matter, follow the due process and then come to the conclusion that individual A had indeed done XYZ, as alleged, and that by doing so, he had committed an offence, and therefore was guilty. The courts would give effect to the fact that the commission of a certain action plus the evidence could reach a guilty finding. The intention behind the wording was crucial.

The Chairperson said that he would be happy to engage with her on the points outside of the meeting, but he still was not persuaded.

Mr Swart agreed with the Chairperson. He also still felt that “commits” produced uncertainty, and he was not sure that the motivation presented was legally valid. He did not wish to belabour the point, but indicated that he would not support the change, and thought it an unnecessary complication.

Mr Holomisa raised the point that a decision was taken some time ago that Parliament would try to write its legislation in plainer and simpler language. To state that “this is the way it has always been done”, particularly when referring to the language used in the criminal court, would not make any sense to the person whose case was now being tried, and did not necessarily mean it was correct. He believed that the term “commit” was correct in the statute, as the courts would make the finding of “guilty”. 

Voluntary association clause
Ms Smuts indicated that she was not in favour of removing the reference to the voluntary associations as she would like to see it written into the Bill that they would continue.

Mr Holomisa presumed that the removal of the words “and voluntary associations of advocates” would not impact on them.

”Republic” or “national territory”
Mr Holomisa asked what the difference was between referring to the “national territory” and the “Republic”.

Mr Skosana said that there was no fundamental change. In the past, Republic had been used as distinct from, for instance, the TBVC states. The word “Republic” encompassed all the territory that now belonged to South Africa.

Adoption of proposed changes, and draft Report on the Bill
Members proceeded to vote on the proposals of the NCOP to amend the Bill.

The majority (four ANC Members) indicated their support for the proposals. Three Members (two from the DA, one from the ACDP) voted against the proposals.

The draft Committee Report was then adopted, with some minor technical changes, to the effect that the Committee, having considered the Bill and the amendments proposed by the NCOP, adopted it.

Committee Draft Legacy Report
Ms Smuts said that she had received a copy of the draft Legacy Report, had marked the few typographical errors, and suggested that other Members do the same, and simply convey those errors to the Committee’s Content Advisor, Ms Christine Silkstone. She commented that the draft Legacy Report was “admirable work”. She suggested that, in order to save time at this meeting, Members should perhaps merely raise any points of substance.

The Chairperson agreed.

Ms Smuts referred to page 10 of the e-mailed document and pointed out that the Constitution 17th Amendment Bill had been withdrawn. She seemed to recall that an early 18th Constitution Amendment Bill was tabled – although she was not sure whether it had been officially gazetted, dealing with State liability, a topic that later was incorporated into a separate Bill, and asked that this be checked. The 18th Constitution Amendment Bill that the Committee had considered jointly was one dealing with education matters.

Mr Swart questioned what happened to the 18th Constitution Amendment Bill, He thought that this Committee had finished its work but it was not accepted.

Ms Silkstone said that she would clarify the wording.

Ms Smuts asked for clarity why the Black Administration Act bore so many references to having been dealt with in three years.

The Chairperson asked if the “yes” column meant that the work on the Bill by the Committee was completed.

Ms Silkstone said that it indicated that the Committee had dealt with the Bill. The first two bills dealing with the suspension of the repeal of the Black Administration Act had referred to specific dates (by which it was hoped that the replacement legislation would have been concluded) but on the last occasion the Committee had merely provided for an extension without a date. She suggested, returning to the question of the column headings that she should insert a reference to “reported on…. (date)” and would explain whether the Bills were passed or withdrawn.

Ms Smuts noted the portion of the draft Report dealing with the Private Members’ Bills. She said that not only did the question need to be considered what would happen if the private Member ceased to be a Member, but also that the incoming Committee needed to consider what to do in the case where the deadline was met for submission, but the Member was not allowed to present the bill expeditiously. She reminded Members that in the case of her own bills, they had been submitted well within the deadlines, and were gazetted, but the consideration of the bill was delayed because government-sponsored legislation was then dealt with as a priority over her bills.

Ms Schäfer suggested also, on the point of Private Members’ Bills, that the incoming committee should consider referring the interim rules, which were adopted after Mr M Oriani-Ambrosini had successfully challenged the existing rules, to the Rules Committee, for refinement. The requirement for a motion of desirability to be passed had effectively replaced the standing committee that used to deal with these Bills, with precisely the same results.

Ms Schäfer noted that the policy on insolvency practitioners, as noted on page 9, was controversial and she would like to suggest that the new committee should interrogate it further.

Ms Schäfer noted the comments about maintenance and repair of court buildings on page 35, and said that somewhere the point should be made that the Committee was apprised of constraints in the Department of Public Works budget on the same projects.

Ms Silkstone said that she would clarify this point with a date; it had been pointed out during the budget debate in the previous year.

The Chairperson added that when the Minister of Justice and Constitutional Development appeared before the Committee he had made the point that he had not been satisfied with the level of service from the Department of Public Works and perhaps the new portfolio committee did need to engage with that department directly. There was nothing precluding it from doing so. He said that Durban High Court was a case in point where something had to be done.

Ms Silkstone pointed out that there was a section of the Report dealing with the Magistrates’ disciplinary inquiries, and, following the discussions earlier in this morning’s meeting, she could add in the concerns raised about the missing dockets, in the Kgomo and Morake matters, and link that to the Committee’s concerns about the failure to implement the integrated criminal justice docket system properly.

The Chairperson said that the Report had indicated that the openness of meetings in relation to magistrates’ disciplinary inquiries was not a challenge any longer, and that there was no controversy on the issue, so that point should be removed. He said that the Magistrates Commission hearings were also, technically, open and the media needed to become aware of that and take advantage of the opportunity if they wishes.

Ms Pilane-Majake wondered if the Report should not list, as a challenge, the point about suspending magistrates with or without remuneration pending finalisation of the disciplinary inquiries, and mentioning the delaying tactics, which was raised consistently in almost every matter. Another point was whether the Magistrates Commission should not be considering part-heard matters, as Mr Hole had needed to be recalled because of the several part-heard matters at the time of his suspension.

The Chairperson responded, on the latter point, that the Magistrates Commission had already indicated that it would be looking more carefully at this question.

Mr Vhonani Ramaano, Committee Secretary, pointed out that this point was covered already on page 29, at the fourth bullet point.

The Chairperson recorded the Committee’s gratitude to Ms Silkstone for her excellent Report

Ms Silkstone thanked him and said that the two Committee Secretaries had also made input.

The Chairperson indicated that although this Committee had effectively finalised its own work for the year, there were still some Bills that needed to be referred back from the NCOP.

The meeting was adjourned.


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