Criminal Matters Amendment Bill [B20B-15]; Judicial Matters Amendment Bill [B2-2015] & Defence Laws Appeal Amendment Bill [B7-2015]: briefings

NCOP Security and Justice

28 October 2015
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Meeting Summary

The Department of Justice presented on the Criminal Matters Amendment Bill. Particular emphasis was placed on crimes involving essential infrastructure, the creation of this new crime and the various amendments to measures and the associated procedures. The bill proposed certain bail restrictions and reversing the onus to the defendant, as well as appropriate minimum sentences or terms.

Members were concerned that, in spite of the good intentions of the Department, the Act had the potential to penalise those at the very bottom of criminal syndicates disproportionately, without attempting to tackle the influential actors. This point was acknowledged and assurances were made that this issue remained a priority of the Department. Clarifications were also made with regard to the budget, the training scheme and the extent to which the Department was in partnership with the South African Police Service (SAPS) for this project.

The Department of Justice then presented on the Judicial Matters Amendment Bill.  From the outset, it was accepted that this was an extremely technical bill, and many provisions were grouped together and summarised briefly. Some of the more important provisions involved the transfer of responsibilities and competences to the Chief Justice, the alteration of pension schemes for magistrates becoming judges, the regulation of acting magistrates and retroactivity of the right of children to have their criminal records expunged.

Members sought clarity on the changes in the pension scheme for magistrates and this was explained, showing that the proposed system was more balanced and fair.

Finally, Members were informed that they would not have to adopt the Defence Laws Appeal Amendment Bill, as per the agenda, due to a procedural constitutionality issue. This was related to the fact that the public participation from both the NA and the NCOP had not been fulfilled, therefore Members were unable to adopt the Bill as it would not be valid. This stemmed from the Constitution, and had been reinforced by the Constitutional Court in a ruling in 2005.

Members questioned the legal basis, sought clarification about the exact law and asked about the reasoning behind the public participation oversight in the first place. The Parliamentary Legal Services answered all of the legal questions, but could not comment on the reason behind the oversight.

Meeting report

Criminal Matters Amendment Bill [B20B-15]: briefing

Ms Ina Botha, State Law Advisor, Department of Justice, presented on the Criminal Matters Amendment Bill. She described how there had been a 7.08% increase in the cost of replacing stolen metals and an increase in the volume of stolen copper since April 2004. She emphasised the relationship between the export of copper from South Africa to the USA and the international price, and the damage to the economy as a result of this.

Crime with regard to essential infrastructure was especially serious in that it posed a risk to public safety, impacted the economy of South Africa, and was becoming increasingly more organised. It therefore needed to be quashed.

She outlined some key statistics in order to contextualize the issues faced by the Department and the reasons behind the amendments in the bill.

Ms Botha summarized the bill as amending the granting of bail, the imposition of minimum sentences and creating a new offence related to essential infrastructure.

Clause 1 of the bill concerned definitions of key terms within the bill, including “basic services”, ‘essential infrastructure” and “tamper”.

Clause 2 was intended to remove the discretion of police officials and prosecutors and to regulate bail conditions further, particularly with regard to essential infrastructure crimes, to reflect their seriousness.

Clause 3 concerned the creation of a new offence, which criminalised the unlawful and intentional tampering with, or damage to, essential infrastructure, with a maximum sentence of 30 years imprisonment.

Clause 4 of the Bill regulated the granting of bail, amending Schedule 5 of the Criminal Procedure Act 1977. In particular, this included reversing the burden of proof to the accused for certain crimes in terms of bail, and outlined bail conditions for essential infrastructure crimes. This clause also clarified exactly what essential infrastructure-related crimes were and how the law would be applied, particularly in respect of bail. (See attached slides for detail).

Clause 5 concerned minimum prison sentences. The amendment would insert a new prison term of between three and seven years.

Clause 6 would allow for judges to depart from the prescribed sentences under certain circumstances. These circumstances were outlined, with a particular focus on essential infrastructure offences.

Clause 7 and Clause 8 were also described as regulating minimum and prescribed sentences for certain crimes, particularly essential infrastructure-related crimes.

Ms Botha briefly mentioned Clauses 9 and 10, amending the Prevention of Organized Crime Act 1998, to include the new crime and specifying the short title and commencement date.

Discussion

The Chairperson asked whether Members would prefer to hear both presentations and comment and ask questions afterwards or to deal with them separately.

Mr S Thobejane (ANC, Limpopo) commented that as the two bills were completely different, so it would make more sense to deal with them separately.

Mr Thobejane said the fact that the Department focused so heavily on organised crime was beneficial, but also potentially problematic, because it could disproportionately affect the poorer people in South Africa. He argued that the desperation of these people, who were low down in the organized crime structure, could lead them to commit these types of offences and that the relatively small amounts of money that were involved with essential infrastructure crimes did not justify such harsh punishment.

He wanted to make it clear that it would be more effective for the Department to tackle the influential actors in charge of these crime organisations, in the affluent areas of South Africa, as opposed to those who committed the physical act of tampering with the infrastructure.


The Chairperson agreed. He also wondered whether there was a budget for the implementation of the provisions set out in the bill. He also asked about the extent to which the Department had engaged and cooperated with the SA Police Service (SAPS). He required clarification on the process and budget around training of the relevant actors for implementation of the system, as outlined by the proposed bill.

Ms Botha answered the Chairperson’s question on budget by outlining areas which had financial implications. She explained how a greater strain would be placed on the courts because the bill would ensure all cases went to court. However, this should not place an undue strain on the courts, as the Department envisioned it.

Further, implementing the minimum sentences proposed by the bill would impact on prison capacities and the number of people in prisons.

She said that the Department of Justice was in partnership with the SAPS and the National Prosecuting Authority (NPA), and had worked closely with them to ensure that the drafting of the bill was in line with what was achievable in terms of implementation.

With regard to the training, she said this would happen through the SAPS. From the beginning, both the NPA and SAPS would have significant influence and had been involved in the drafting process. She emphasised the importance of making the system more manageable.

The Chairperson had concerns about the minimum sentences that were proposed, and asked why it was necessary to make the sentences so long for crimes related to essential infrastructure.

Ms Botha replied that the reason that this offence warranted such serious punishment was that it affected such a large number of people. Many other serious crimes existed, but affected one or two victims, whereas with essential infrastructure offences entire communities could be adversely affected for days and weeks on end.

Mr L Nzimande (ANC, KwaZulu-Natal) said he was in favour of adopting the bill.

The Chairperson told Members they were unable to adopt the bill at this time, as it had not been considered by the National Assembly yet. He took note of Mr Nzimande’s comments.

Ms T Wana (ANC, Eastern Cape) wondered what other measures could be put in place within the parameters of the Act in order to tackle the handlers. She was concerned about the youths and the problems surrounding such harsh punishments for youths, who had to commit these crimes as part of a larger group. The bigger problem was the syndicates, and the Department should focus more on them in order to guarantee that the crime was actually tackled.

Ms Botha said that it was possible to claim damages for the loss of certain essential infrastructure, and that there had been a precedent for this in Cape Town.  

She agreed that the people being prosecuted would be the youth and most vulnerable. However, the Department was making concerted efforts to look at those higher up in the syndicates -- this was a priority.

Mr Lawrence Bassett, Chief Director: Department of Justice, commented that with regard to children and youths, the Child Justice Act would come into play. This would mean that children would not be adversely affected by the Act. They would be protected by the special measures and processes under that Act, and not affected by the minimum sentences.

Judicial Matters Amendment Bill

The Chief Director presented on the Judicial Matters Amendment Bill 2015. He summarised each clause from the Bill, emphasising key points and referred Members to the attached slideshow presentation for further detail.

Clause 1 concerned the appointment of acting magistrates, extending the period from three to 12 months.

Clause 2 repealed the provisions which created peace orders, stipulating that other measures in existence should be used for disturbances of the peace, on the basis that they were no longer constitutionally compliant.

Clause 3 concerned prescribed rates of interest on debts, when no other law governed, to be in line with the National Treasury’s repo rate.

Mr Bassett highlighted Clause 4 as an important amendment. This provided that when a magistrate vacated his or her office, he/she would be entitled to pension only from that moment, as opposed to the position as it stood, which meant magistrates could claim early retirement pensions.

Clauses 5, 16, 17 and 18 of the amendment bill were dealt with together. These amendments enhanced the independence of the office of the Chief Justice by entrusting a greater number of responsibilities.

Clauses 6 to 11 of the bill were also dealt with together for the purposes of the presentation. These were also aimed at enhancing the independence of the Chief Justice and transferring functions from the Department to the judiciary.

Clauses 12 and 13 concerned responsibilities in the administration of the Act, transferring them from the Director General of Justice and Constitutional Development, to the Chief Justice.

Clause 14 set out the responsibilities and functions of the Intersectoral Committee for the Management of Sexual Offences Matters.

Clause 15 involved the implementation of training schemes based on a training manual, and annual reports under the Sexual Offences Act.

Clause 20 applied a rule retrospectively that aimed at expunging the criminal records of children, under certain criteria.

Clauses 21 and 22 were considered to be technical amendments in respect of laws combating trafficking.

Discussion

Mr Nzimande queried Clause 4 on the amendment affecting the pensions of magistrates and the idea of accumulation of wages. He was concerned that the rule was unfair to magistrates, and asked for more details on the amendment.

Mr Basset clarified that in fact this rule would apply only when magistrates were to become judges. Their pension fund would grow over the years through actuarial interest, and they would be entitled to claim this. The current situation meant that judges would be deemed to have retired early and would be entitled to a full pension when not at retirement age, doubling the pension payment.

The Chairperson asked about the consistency of the implementation of the amendments to Clauses 15 and 19 in terms of sexual offences.

Mr Basset explained how these regulations would create uniformity, and give clarity as to which areas should be worked on by the Department and SAPS in the future.

Defence Laws Appeal Amendment Bill

Adv Anthea Gordon, Parliamentary Legal Services, told Members an issue that had arisen in terms of following the procedure to adopt the Defence Laws Appeal Amendment Bill. In terms of the constitution, there was a requirement for public participation by both the National Assembly (NA) and the National Council of Provinces (NCOP). In the current situation, the NCOP had not met this requirement and therefore, as per the Constitution, Members could not adopt the bill yet. The process had to be completed fully before the bill would be constitutionally viable.

Discussion

Mr Thobejane was of the view that there may not be a need to do the second public participation session, with the NA having completed one already. He asked for further detail and clarification on the exact legal standing.

Ms Gordon clarified that the constitutional court and the judiciary had not made the rule in question -- they had merely ratified the Constitution and interpreted the relevant provisions.
The NCOP was obliged, in terms of Section 76 of the Constitution, to conduct public hearings. Even more importantly, the NA was obliged under Section 75, and because the bill did not go through the provinces directly, public participation was especially important with the NA, and could not be overlooked.

Mr J Mohapi (ANC, Free State) asked for further clarification on this issue, asking specifically about the legal source of the requirement and also the reason behind this oversight by the NA.

Ms Gordon reiterated that the obligation was not set by the court, but by the Constitution. She explained the context, where a similar thing had happened in a case in 2005 involving the Dental Technician Amendment Bill, and the NCOP had not satisfied the public participation requirement. The Constitutional Court had held that it was required under the constitution that both houses meet this requirement, especially the NCOP under s75, as it was organised by delegation as opposed to individual party lines.

She was unable to answer why this had been overlooked by the NCOP, as she had not been informed as to the reasoning behind the oversight and could not speak directly on behalf of the NCOP.

Mr Mohapi wanted to know what would happen, moving forward.

Mr Nzimande felt that there should be adequate cohesion between the NA and the NCOP, and therefore no need for the duplication. This sentiment was supported by Mr Thobejane.

The Chairperson said that the Committee could discuss this issue at the next meeting.

Ms Gordon emphasized that the legal standing was such that s2 of the Constitution overrode s75 and s76. This had been confirmed through the jurisprudence and meant that the bill could not be passed as it had not gone through the necessary legislative process.

The meeting was adjourned.
 

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