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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
7 April 2003
PUBLIC PROTECTOR AMENDMENT BILL; CRIMINAL PROCEDURE AMENDMENT BILL: DELIBERATIONS
Chairperson: Adv J H De Lange (ANC)
Documents handed out:
Portfolio Committee Amendments to Public Protector Amendment Bill
Criminal Procedure Amendment Bill [B57-2002]
Working Draft of Criminal Procedure Amendment Bill
Some additional changes were proposed to new Clause 2 and 3 of Public Protector Amendment Bill and the Committee will wait to see these changes effected by the drafters to see if the changes concur with the Constitution in its section dealing with the Public Protector.
Clause 2 of the working draft of the Criminal Procedure Amendment Bill was reviewed. The drafter was asked to re-write S309(5) and S309C(2) as the original drafting in 1977 was incorrect.
Judicial Amendment Bill
The Chair noted that the Judicial Amendment Bill would be debated in the House on 9 April 2003 and all the political parties have approved the Bill except the DA that noted a reservation. The focal points of the debate on the Bill would be the appointment of the Chief Master of the Courts, Liquidation and Sequestration.
Flooring crossing periods
He noted the media present in the room and said he would like to clarify the floor crossing issue, as there seems to be a misunderstanding. Legislation makes it clear that the floor crossing process takes place during September of every second and fourth year following elections. The claim that there would be another floor crossing in September of this year is unfounded. Firstly due to the fact that this is a fifth year for both the National and Provincial Parliaments, and therefore not a fourth year as stated in the legislation. Secondly the process had just kick-started and it would be absurd to have another floor crossing in the same year. However local government would be finishing its fourth year after the election in 2004 and in terms of the legislation a floor crossing should indeed take place for them during September 2004.
Public Protector Amendment Bill
The Committee went through the amendments that the Department had prepared as a result of the previous deliberations (see Amendments Agreed To document). The amendments were accepted but further changes were made to new Clause 2 and new Clause 3 as follows:
Mr H du Preez (Department of Justice) said that it should be noted that the Office of the Deputy Public Protector is created in terms of the legislation and as such it would not enjoy constitutional protection, as it is the case with the Office of the Public Protector, but it would have legislative protection.
New Clause 2
The Committee concurred with the Chair's proposal that the phrase 'other matters' in Clause 2(1)(e) be omitted and be replace by 'any other matter'.
New Clause 3
Mr J Jeffrey (ANC) noted that Section 2A(3)(a) requires the National Assembly to appoint a committee, which would be responsible to nominate the person who would be appointed as Deputy Public Protector.
The Chair said that there is no need for a separate committee to be appointed since there are committees that already exist which can perform such action.
Mr Jeffrey acknowledged that but contended that in his interpretation of the provision it seems to require that a separate committee should be established. Who should constitute such committee is irrelevant, thus it could be Justice Portfolio Committee members or members from other committees - just as long as it is a separate committee establish for the purpose of nominating a Deputy Public Protector.
The Chair accepted that the word 'nominated by' in S2A(3)(a) creates problems and as such the phrase 'or assigned' should be inserted after the word 'nominated'.
The Committee concurred and noted that the department should refine this provision.
Mr Jeffrey noted that the requirements stipulated in S2A(4) are similar to those required for one to be appointed as the Public Protector and as such they make it impossible for academics, who have not sat the bar admission examination, to qualify to be appointed either as Public Protector or Deputy Public Protector.
The Chair said that the provision of S2A(4) does not necessarily want one to be a qualified advocate or attorney . As long as the person qualifies to be admitted as either an advocate or attorney, then the person would be eligible to be appointed as Deputy Public Protector. This is evident in the wording of S2A(4)(a)(ii).
Mr S Swart (ACDP) agreed with the Chair's interpretation.
Adv T Masutha (ANC) said that the manner in which the provision is drafted is so vague in that it could be susceptible to various interpretations.
The Chair acknowledged this. He proposed that the department should rewrite this subsection and state the requirements for S2A(4)(a)(i) and (ii) in the separate subsections so as evade any loopholes that may be created as the result of interpretation. He also noted that although the provisions of S2A(4)(b) do include the executive and the judiciary but the legislature has been excluded and as such it should also be included in the new provision.
The Committee agreed that the whole issue of admission either as an advocate or attorney should be clearly stated in the requirements so as not to cause any confusion.
The Department was asked to rewrite and refine the provisions of S2A(11)(a) so as to state that "The President may suspend the Deputy Public Protector from office at any time after the institution of an investigation or enquiry or referral by the committee â€¦".
The Committee will reconsider the Bill after the department has effected these changes as the proposed changes in the Bill might affect the Constitution as it relates to the Public Protector.
Criminal Procedure Amendment Bill
The Committee looked at the Working Draft of the Criminal Procedure Amendment Bill (see document).
The Chair commented that there are certain provisions in this Bill that worry him and it would not be acceptable for the department to argue that they were so drafted because they had been drafted in this manner in the previous legislation. The Committee could not condone something that is clearly wrong.
The Committee said that the phrase 'or order' in S309B(1) of Clause 2 should be placed before and not after ", including a conviction or resultant sentence".
The Chair noted that when the Committee considers which option to adopt in S309B(2) it should bear in mind that a person would always have the right to lodge a petition in terms of S309C should the person's application be refused by the Magistrate. Therefore it is important that the Committee chooses an option that minimises the costs, whilst such option conforms to the provisions of the Constitution.
He added that the substitute Magistrate could always access the record of the proceedings if required, even if it is a Regional Court Magistrate.
He believed that the first part of S309(5) did not make sense since there is no evidence that is given in terms of S309(1) but only an application for leave to appeal against the decision or order of a lower court. The evidence begins to be given only in terms of S309(4), therefore it would be proper for the department to rewrite S309(5) - especially if it had been stated like that in the previous legislation. The Committee could not accept it, as it is clearly wrong.
With regard to the second part of S309B(5) he said that the word "or" should be inserted as follows: "including the cogency and/or". He thereafter asked for clarity on the extensions noted in S309C
Adv H Schmidt (DA) said that what the provision means is that should the application expires during that 14 day period then an extension can be granted. The extension is a condonation, which cannot be granted by the Magistrate but only by the High Court.
The Chair accepted Adv Schmidt's explanation. He then proposed that the section be rewritten as it was congested and roman numerals should be introduced. The condonation for the 21 day period should also be included in the revised version of the section and the department should look carefully at the issue of terminology as there seems to be no clear distinction between the application and the petition procedures in the Bill.
Ms F Chohan-Khota (ANC) agreed with the Chair's proposal. She asked clarity on what is meant by "or all such applications" in the last part of S309C(1).
The Chair proposed that 'or some' be inserted before 'or all' otherwise the subsection would cause a lot of confusion since a person would think that all such applications had to be submitted before a person's application may be heard.
He questioned the relevance of S309C(2) and maintained that the petition procedure is dealt with by the High Court and has nothing to do with Magistrate Court, which this subsection refers to. The department would need to consult extensively in order to determine what was the intent of the original drafters when they included this subsection in this provision in 1977. The department would also have to determine if there has been any court case that has tried to interpret this provision and if so what was its findings. One also needs to take into account that S309C(2) does not have a specific timeframe that can be extended.
The meeting was adjourned.