Judicial Matters Amendment Bill; National Prosecuting Authority Amendment Bill: voting

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
6 November 2000
JUDICIAL MATTERS AMENDMENT BILL; NATIONAL PROSECUTING AUTHORITY AMENDMENT BILL: VOTING

Relevant documents
Judicial Matters Amendment Bill [B 63B-2000]
National Prosecuting Authority Amendment Bill [B 39B-2000]
Committee Report on National Prosecuting Authority Amendment Bill - as found in ATC, dated 07/11/00 [see Appendix 1]

Chairperson: Mr JL Mahlangu

SUMMARY
The Committee unanimously passed the Judicial Matters Amendment Bill as passed by the National Assembly with no further amendments. The National Prosecuting Authority Amendment Bill was also passed without amendments.

The Committee agreed to pass a resolution noting that the Bill makes provision for the determination of salaries and making of regulations by the Minister for Justice and Constitutional Development "in consultation" with the National Director of Public Prosecutions. The view expressed in the resolution is that it could be more appropriate for these powers to be exercised "after" consultation with the National Director of Public Prosecutions. The Department will deal with this in the New Year.

MINUTES
Judicial Matters Amendment Bill
The Chairperson noted that the Committee is aware of the contents of the Bill as they had sat with the National Assembly committee when it considered the Bill. He asked Mr Labuschagne of the Department to go through the Bill for the benefit of members who had not been present.

Mr Labuschage briefed them only on the amendments effected after the Portfolio Committee on Justice and Constitutional Development had voted on the Bill. He explained that the Portfolio Committee had given the drafters a mandate to effect changes that they had agreed to before passing the Bill. These amendments relate to clauses 35 and 38 of the Bill.

In clause 35, section 52A(3)(c) is amended by the deletion after the word "judgment," of the words "and, if the accused is in custody, the judge may make such order with regard to the detention or release of the accused as he or she may deem fit." The words are substituted by "subject to section 52(3)(c)". Mr Labuschagne said the concern was that a judge might give conflicting orders with regard to bail where an accused is charged with a minimum sentence offence and a non minimum sentence offence.

Subclause 38(1) has been moved to be subclause 8(2) so that it is dealt with in the same clause amending the bail provisions.

Subclause 38(2) has been moved to clause 36 and added as a new subclause (5) to section 53 of the Criminal Law Amendment Act, 1997.

Mr Lever (DP, North-West) wanted to know if the Bill would have to go back to the National Assembly again.

Mr Labuschagne said these amendments were included in the Bill that was approved by the National Assembly.

The Chairperson asked members if they had any problems with the Bill.

Ms Lubidla (ANC, Northern Cape) said the ANC had no problem accepting the Bill. Mr Mathee (NNP, KwaZulu -Natal) said they had no problems with the Bill.

Voting
All the clauses were agreed to.
The whole Bill was agreed to.
The Chairperson put the motion of desirability before the Committee and it was agreed to. The Report of the Committee was agreed to.

Debate in the House
Mr Labuschagne asked whether the Committee would go for a statement by the Chairperson or a debate on the Bill in the House. The Chairperson said the agreement was that there would be no debate on the Bill. Mr Lever said they are happy with a statement by the Chairperson.

National Prosecuting Authority Amendment Bill
Mr De Lange, the drafter from the Department of Justice, explained to this Committee that the original Directorate of Special Operations Bill had been transferred into the National Prosecuting Authority Act. Now the Directorate is made an investigating directorate that is part of the National Prosecuting Authority. All three units that formed the Directorate will be collapsed into one and space would be left for a further two directorates to be formed.

Mr De Lange said the issue had arisen in the National Assembly as to whether it was appropriate that powers exercised by the Minister in Clauses 8 and 11 be done "in consultation with" the National Director of Public Prosecutions as there was no deadlock breaking mechanism. The Portfolio Committee argued in favour of "in consultation" because the Directorate has a separate budget and reporting and it thought it would be inappropriate for the Minister to act unilaterally in matters affecting the Directorate.

The Chairperson said he had discussed the matter with the Department, and also with the Chairperson of the Portfolio Committee on Justice, who indicated that he has had discussions with the Minister, and there was agreement that the Minister would not do anything without consulting with the National Director. The National Director also indicated that he had no problem with "after" consultation in the Bill.

This Committee passed a resolution proposing that the Department note the matter and if appropriate come up with an amendment as it may be inappropriate for these powers to be exercised only with the concurrence of the National Director of Public Prosecutions. Rather these powers should be exercised after consultation with the National Director of Public Prosecutions. The Department will address the matter early next year.

Voting
All the clauses of the Bill were agreed to.
The whole Bill was agreed to.
The motion of desirability was agreed to.
The Report of the Committee together was agreed to.

The Chairperson said the Bill would be discussed in the House on 10 November 2000.

Debate in the House
Mr Lever said there are not any contentious issues amongst the parties on the Bill so the debate on the Bill in the House will merely be for public interest. Mr Mathee felt that space should be left for just a declaration to be made on the Bill. The Chairperson disagreed saying he feels that since the Bill introduces a new structure in the country, they should "sell" it to the general public.

Determination by the Public Protector
The Chairperson asked Mr De Lange of the Department to find out if the NCOP was required to pass the determination of remuneration, allowances and other conditions of employment of staff of the Public Protector's office as the National Assembly did.

Mr De Lange said the provision requiring the determination to be brought before Parliament only refers to the National Assembly and says it should be approved by the National Assembly, and there is no mention of the NCOP. The Chairperson said in the light of the explanation the matter is removed from the program of the Committee.

Strategic Planning Session
The Chairperson said the Committee has not been able to hold a strategic planning session. He envisaged the first Committee meeting after recess would strategize on how to structure its business in the new year. He hoped that members would come up with creative ideas as sometimes the Committee had to meet for decisions that could be taken without formally meeting. The suggestions could even help lessen the problem of absenteeism. He expressed hope that the Committee would be able to break new ground in this regard, by even suggesting changes to some of the rules, setting an example for the rest of Parliament. The meeting was adjourned.

Appendix 1:
Report of the Select Committee on Security and Constitutional Affairs on the National Prosecuting Authority Amendment Bill [B 39B - 2000] (National Assembly - sec 75), dated 6 November 2000:

The Select Committee on Security and Constitutional Affairs, having considered the subject of the National Prosecuting Authority Amendment Bill [B 39B - 2000] (National Assembly - sec 75), referred to it, reports that it has agreed to the Bill.

The Committee wishes to report further, as follows:

The Committee noted that Clauses 8 and 11 of the Bill, respectively, make provision for the determination of salaries and the making of regulations, by the Minister (for Justice and Constitutional Development), in consultation with the National Director of Public Prosecutions. The Committee is of the opinion that, in the circumstances in question, it may possibly be inappropriate for these powers to be exercised only with the concurrence of the National Director of Public Prosecutions. It might be more expedient for these powers to be exercised after consultation with the National Director of Public Prosecutions. The Committee therefore recommends that the Minister for Justice and Constitutional Development be requested to consider this matter and, if necessary, submit an appropriate amendment to Parliament for consideration.

Report to be considered.