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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
30 October 2002
CRIMINAL PROCEDURE AMENDMENT BILL: BRIEFING; PREVENTION OF CORRUPTION BILL: DELIBERATIONS
Documents Handed Out:
Criminal Procedure Amendment Bill [B57-2002]
Prevention of Corruption Bill: [B19-2002]
Prevention of Corruption Bill: Working Document No 3
Presentation on Impact of Appeals by Dr Glanz
Report by Dept of Justice: Court Services - Statistical Evidence on the Impact of Appeals on the Administration of Justice
The Committee were briefed by the Department of Justice, the Legal Aid Board and the Prosecution Services on the impact the Constitutional Court's 'Steyn' Judgement had made on the Administration of Justice and the proposals within the Criminal Procedure Amendment Bill to counteract this.
They were also briefed on the Prevention of Corruption Bill
Adv de Lange (ANC) announced that he had to deal with a problem relating to the passing of the Interception and Monitoring Bill in the NCOP. In the absence of Ms Chohan-Kota, Adv Masutha was asked to chair the Committee.
Criminal Procedure Amendment Bill [B57-2002]
The Committee was attended by Dr L Glanz, Director of the Business Unit: Court Services of the Department of Justice, Mr P Brits, Executive: Corporate Services - Legal Aid Board, Mr G Nel and Mr H du Preez, Department of Justice, drafters.
Dr Lorraine Glanz gave a presentation on the findings of a special survey she had been asked to carry out on the number of appeals following the Constitutional Court's Steyn Judgement. She said the project had to run for one year but this has been continued at the request of Adv de Lange.
Mr Mzizi (IFP) noted that the appeals appeared to be rising and asked what the causes of this could be.
Dr Glanz said there had been an increase in the number of appeals which had increased the number of appeals pending. Mr Nel from the Department added that, undoubtedly, the reason for the upsurge had been the Steyn Judgement. This was having a damaging effect on the administration of justice as, in Gauteng for example, there had been over 500 appeal applications yet, despite increasing the number of judges sitting and the hours the court was in session, they had only managed to deal with half that number of appeals.
Mr Mzizi (IFP) asked if the recess time permitted to judges added to the problem.
Mr Brits from the Legal Aid Board said that this was not the case as the Johannesburg Courts sat through the recess but still had 800 applications awaiting processing, on top of the pending cases. Mr Nel noted that the Judges utilised their recess periods by writing up their judgements and reading up on recent cases. A further proposal to assist in the backlog of cases was for Court Researchers to be appointed similar to those employed by the Constitutional Court.
Adv Masutha (ANC) said that the figures offered by Dr Glanz showed a positive gain for justice and not a negative one such as those briefing the Committee claimed - since it showed that there was an increase of 70% on the number of appeals upheld.
Mr Brits said that a filter mechanism must be introduced to ensure that the unmeritorious cases do not hold up the meritorious ones. However, Adv Masuthu said a filter mechanism could not work with any precision. Mr Swart (ACDP) noted that the Report by Dr Glanz said that there was concern that a filtering process would not stand up to constitutional scrutiny. Dr Glanz said that the suggestion put forward by Judge Ngoepe, the Judge President of the Transvaal Provincial Division, was said to be likely to be found unconstitutional.
Mr du Preez from the Department said that the proposals in the Criminal Procedure Amendment Bill differed from this and would suit the terms of the Constitutional Court ruling. He also said that the Constitutional Court had not decided on the right to appeal from a lower court so the Department was currently undertaking an information gathering exercise.
Adv Masuthu (ANC) asked where this information gathering exercise was leading to after today? Mr du Preez said that the recommendations within Dr Glanz' report did not square with the Department's recommendations of 2 September 2002. The Department had not changed its stance. However, Dr Glanz' statistics provided additional evidence to support the Department's position.
Adv Masuthu asked Dr Glanz if the study had been undertaken using quantitative or qualitative methods. She said that it had been largely quantitative, however, a qualitative element had been introduced by asking for feedback from the judges on the issue. Adv Masuthu said that it appeared that more work needed to be done on the subject as the figures themselves showed that there had been a marked increase in the number of successful appeals, regardless of the number of unsuccessful ones.
Mr du Preez, the drafter from the Department said that the report showed conclusively that the meritorious appeals were being unduly delayed by the unmeritorious ones, the Judge Presidents unanimously approved the Bill with some even saying that the original system should be re-introduced.
Adv Masuthu (ANC) asked for clarity that the Judge Presidents had approved the Department's submission as it currently stood.
Mr Mzizi (IFP) asked who would be assessing the appeals? Mr du Preez said that the Bill reintroduces the system that the appeal is brought before the presiding Magistrate. When asked if this would be constitutional, he said that the Constitutional Court had been concerned that previously the relevant information was not placed before the appeal court for a fair decision to be reached. This problem had been dealt with in the proposals.
Mr Brits, from the Legal Aid Board, said that the proposals allowed for the limited public funds to be spent on the most deserving people. Adv Masuthu said that if a filtering mechanism could be shown to be needed, fair enough, and if this report helped to show that, then the report was useful. However, the constitutional rights of individuals must take precedence over administrative ease. Mr Brits said that the cost of an appeal this year was R1 700. Next year the figures would increase to R1 880 per appeal. The increase in the number of appeals was in excess of 5 000.
In conclusion, Mr Nel said that the Bill had been received by the National Public Prosecutor's Office and had been sent to all the Directors of Public Prosecutions. Everyone of them had said that there was a need for a sifting process, however, they differed on the precise process to adopt. This was the first time he had seen Dr Glanz' written report, however, the recommendation of Judge Ngoepe looked almost identical to the proposal from the Public Prosecutors. They had been told that their proposal would not stand up to constitutional scrutiny. The problem is that the people affected by this were largely unrepresented accused who could not put their case to the judge themselves. If the judge did not receive the full Record, then the system could not work.
Adv Masuthu (ANC) concluded the deliberations by saying that the Committee would have to revisit the issues.
Prevention of Corruption Bill
Mr Nel, the drafter from the Department, noted that he had, as requested, looked at some alternative definitions to 'corruptly'.
Dr Delport (DP) said that he was very impressed by the Australian definition and, if a sub (c) could be incorporated covering 'in a manner designed to achieve an unjustified result' then it would be watertight.
Mr Nel said that the definition in (xi) on page ten of the Working Document had been altered in line with section 43 of the Constitution which spells out who holds legislative authority. Clause 6 had also been altered so the definition of 'political office bearer' could be deleted. Sub (xiv) "public body" had also been altered to make it refer only to legislation.
Adv Masuthu (ANC) queried if this was now in line with the Interpretations Act? Mr Nel confirmed this to be the case.
Adv Masuthu (ANC) asked why on in (xx) "sproting event", birds and animals had been noted separately as birds were animals? Mr Mzizi (IFP) asked why there was specification at all? The section spoke to any sporting event.
Mr Nel said he would seek clarity from the State Law Advisors as they had put it in. He said the section was also based on the US legislation.
Sub (xxA) introduced the new category of partner after the Du Toit judgement from the Constitutional Court.
Mr Nel said that the alteration to clause 4 was the insertion of the word 'corruptly' and clause 6 was introduces as per Adv de Lange's wishes, with clause 6A introducing a new offence.
Adv Masthu (ANC) asked why a 'reward' was specified separately, yet the clause began by saying 'give any gratification.' He said that a reward was a gratification.
Mr Nel replied it was to ensure that only specific types of rewarding were unlawful.
Mr Nel said that clause 8A created the new offence of corruption pertaining to the private sphere. It was based on clauses 3 and 4. Adv Masuthu asked how this clause did not also relate to the public sphere if it merely specified the offence to relate to 'any person'? Mr Nel said that the terms 'in the course of business' and 'employment relationship' contextualised it.
Clause 10 was intended to comply with the OECD Convention and the alterations to clause 11 on corruption in the auctioneering industry was as a result of queries raised by the Committee in August. Mr Nel had spoken to many people regarding the practice in the auction houses and these suggestions were based on the feedback he received therein.
Ms Camerer (NNP) said that clause 12(3) should say 'contract' not 'contact.' Adv Masuthu (ANC) queried the need for such a section as it seemed simply to be a legislative version of the existing legal maxim that a contract tainted by illegality was unenforceable.
The Committee entered into a debate on the meaning of 'undue' and 'due' gratification and the Committee's previously held view that there was not necessarily a reason for having 'corruptly' stated. Adv Masuthu could see, however, that removing corruptly from some specific instances would necessitate some degree of differentiation between different forms of gratification in order that the Bill did not criminalise legitimate forms of reward.
Adv de Lange (ANC) was also concerned by the presumption in sub (3) of the various versions of clause 19 that family and friends would be implicated. He said it went too far. The Committee had a discussion on the structure of the clause and suggested that the various aspects of the crime were insufficiently clear by the structure and wording. They suggested that the clause be redrafted to state the elements of the crime and the rebuttals clearer. Adv de Lange and Ms Chohan-Kota both felt that there was a degree of overlap between this provision and some of the others within the terms of the Bill. Adv de Lange mooted that perhaps sub-clauses (1) and (3) should be removed and only sub (2) of the first option should remain. Adv Masuthu (ANC) likened the proposed concept to the SARS investigation. Mr Nel also remarked on the Interception and Monitoring Bill's proposals that a judge gave permission for the investigation to proceed.
The Committee broke on the undertaking to further consider these important matters.
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