A delegation from the Department of Justice and Constitutional Development presented the Criminal Procedure Amendment Bill to the committee. The delegation apologised for the delay in getting the bill to parliament and noted that the deadline was fast approaching.
The Department explained that the proposed bill gives effect to two Constitutional Court judgments, De Vos v Minister of Justice and Constitutional Development and S v Pedro. The bill seeks to stop the incarceration of accused persons who are mentally ill or intellectually disabled in prisons. The proposed amendments will allow judicial officers to make a broader range of orders beyond just detention. Specifically, individuals who are not in need of in-patient treatment can be released on condition that they receive treatment on an out-patient basis. Judicial officers can also order that an accused person be released until a bed is available at a facility – or if an individual is particularly dangerous – that they be held temporarily in the hospital facility of the prison. Most notably, the amendments do away entirely with the judicial officer’s power to order imprisonment (save as a temporary measure) for any persons found to be mentally ill or intellectually disabled.
Several committee members expressed concern at the lack of an African perspective regarding the psychological evaluations provided for in the bill. The Chairperson pointed out the need to pick up the pace of transformation especially within the field of law and the law curriculum, to ensure a more diverse perspective informs our law. It was agreed that another sitting would be organised at which experts would be invited to present on those aspects of the bill members were concerned about.
A delegate from the Magistrates Commission presented the case of Mr Hole, a Regional Magistrate found guilty in June last year of misconduct and ordered to be removed from office. Mr Hole took the decision of Commission to court but the presiding judge withheld judgement. The committee stated that they would not decide on a matter that is pending in court and that the law should be allowed to take its course. The delegate then turned to the matter of Ms Monaledi, Regional Court President of the North West, who was charged with over 60 charges of misconduct mostly relating to the submission of false transport and subsistence claims. The Commission requested that the committee finalise the suspension of Ms Monaledi. Several committee members showed support for the immediate suspension of Ms Monaledi saying that she can no longer be entrusted to administer justice but the other majority ANC members said that they would not suspend her without first acquiring more information relating to her case. They further argued that there can not be a situation where a majority white Commission is suspending majority black magistrates. Ultimately a decision was taken to postpone the confirmation of her suspension and organise another sitting at which more information would be presented to the committee. Many members were dissatisfied with this decision as it was felt that the report presented by the Magistrates Commission was damning and warranted the immediate suspension of Ms Monaledi.
The Chairperson greeted everyone and asked Mr Lawrence Basset to introduce his delegation.
Briefing by the Department of Justice and Constitutional Development on the Criminal Procedure Amendment bill
Mr Lawrence Basset, Chief Director: Legislative Development, Department of Justice and Constitutional Development, introduced his delegation as follows:
Mr Henk Du Preez, State Law Advisor, Department of Justice and Constitutional Development, Ms Canne Teunissen, Senior State Advocate for the NDPP and Ms Inge Outony, State Law advisor, at the Department of Justice
Mr Basset explained that the proposed bill gives effect to two Constitutional Court judgments, De Vos v Minister of Justice and Constitutional Development and S v Pedro. He pointed out that the deadline for the bill is June this year. He acknowledged that bill should have been introduced long ago and apologised to the Committee on behalf of the Department for the delay in getting the bill to Parliament.
Mr Du Preez explained that:
-Section 77 of the CPA deals with the capacity of an accused person to understand criminal proceedings and provides that if it appears to a court that an accused person is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of section 79 (composition of panel for purposes of enquiry and report under sections 77 and 78).
-Section 77(6)(a)(i) provides that if a court finds that an accused person is not capable of understanding the proceedings the court must, in the case of a charge of murder or culpable homicide or other offence involving serious violence, direct that the accused concerned be detained in a psychiatric hospital or a prison pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act, 2002.
-Section 77(6)(a)(ii) of the CPA requires that a court must direct that an accused person, where the court finds that the accused has committed an offence other than one contemplated in section 77(6)(a)(i) or that he or she has not committed any offence, be admitted to and detained in an institution as if he or she were an involuntary mental health care user contemplated in section 37 of the Mental Health Care Act, 2002.
Sections 77 to 79 established a procedure which consists of three components, namely―
(i)certain accused persons are referred to psychiatric institutions for observation;
(ii)a panel of experts is tasked with the observation of the accused persons and reporting to the courts on the mental condition of the accused persons concerned; and
(iii)the courts make findings with regard to the mental condition of the accused persons and orders their institutionalisation in psychiatric institutions.
The purpose of the bill is to give effect to two judgments:
Constitutional Court: De Vos N.O. and Others v Minister of Justice and Constitutional Development and Others  ZACC 21, which declared section 77(6)(a)(i) of the CPA to be inconsistent with the Constitution and invalid to the extent that it provides for—
(a) compulsory imprisonment of an adult accused person; and
(b) compulsory hospitalisation or imprisonment of children.
This judgment was delivered on 25 June 2015 – Court gave Parliament 24 months to correct provisions concerned.
Western Cape High Court: S v Pedro  JOL 32061 (WCC):
-Composition of the panels provided for in s 79 of CPA came under scrutiny in this case.
-The case largely dealt with the correct interpretation of section 79(1)(b) of the CPA insofar as it relates to the composition of the psychiatric panels. Section 79(1) of the CPA deals with the constitution of the panels for purposes of the sections 77 and 78 reports to be prepared for the court. Section 79(1)(b) provides that where the accused is charged with, among others, murder or culpable homicide or another charge involving serious violence, the panel concerned must consist of a—
-medical superintendent of a psychiatric hospital designated by the court, or by a psychiatrist appointed by the medical superintendent at the request of the court;
-a psychiatrist appointed by the court and who is not in the full-time service of the State unless the court directs otherwise, upon application of the prosecutor, in accordance with directives that have been issued by the National Director of Public Prosecutions;
-a psychiatrist appointed for the accused by the court; and
-a clinical psychologist where the court so directs.
-The court gave a clear and unambiguous interpretation of how section 79(1)(b) should be read in order to ensure that the psychiatric panels are properly constituted. The Court found that three psychiatrists, including a private psychiatrist, must be appointed unless the court, upon application by the prosecutor, directs that a private psychiatrist need not be appointed, in which case there must be two psychiatrists. The court may in any event appoint a private psychiatrist. The Amendment Bill therefore also aims to amend section 79 of the CPA in order to ensure that the provisions thereof are not only consistently interpreted and applied in the Western Cape, but throughout the country.
Clauses 1 and 2 give effect to the De Vos case.
-Clause 1(a) - replaces the outdated term of “mental defect” in S 77(1) with “intellectual disability”.
-Clause 1(b) - amends S 77(6)(a)(i) – the court is given a discretion to order that―
-the accused person be detained in a psychiatric hospital; or
-the accused person be detained in a correctional health facility of a prison where a bed is not immediately available in a psychiatric hospital if the court is of the opinion that that the accused poses a serious danger to him- or herself or to members of the public;
-accused person be admitted to and detained in an institution as an involuntary mental health care user contemplated in S 37 of the Mental Health Care Act, 2002; or
-the accused person be released subject to such conditions as the court considers appropriate.
-Clause 1(c) - amendment of 77(9) is of a consequential nature. Subs (9) provides that if an appeal against a finding that an accused can understand the proceedings then the court of appeal should set aside conviction and sentence and order that accused admitted to an institution. Subs (9) to be amended to provide that case be referred back to court that made finding in order to issue direction i.t.o s 77(6)(a)(i) or (ii).
-Subclauses (a) to (d) and (f) replace the outdated term of “mental defect” wherever it appears in S 78 with “intellectual disability”.
-Subclause (e) deals with the detention of a person in prison and requires that the person concerned be detained in a correctional health facility of a prison where a bed is not immediately available in a psychiatric hospital if the court is of the opinion that it is necessary to do so on the grounds that the accused poses a serious danger or threat to him- or herself or to members of the public.
Clause 3 gives effect to the Pedro case:
-Subclause (a) amends S 79(1) to the following effect:
-in the case of less serious offences: enquiry must be conducted and reported on by the head of a health establishment if the head is a psychiatrist or by a psychiatrist delegated by the head.
-in the case of serious offences: a panel must be constituted and consist of at least two psychiatrists. A third member of the panel, namely a psychiatrist, may be appointed by the court upon application by the accused person. A clinical psychologist will form part of the panel if the court so directs.
-Subclause (b) inserts the term “mental condition” before the term “mental capacity” for purposes of consistency with other provisions of S 79.
-Subclause (c) replaces the outdated term of “mental defect” in S 79(4)(d) with “intellectual disability”.
-Subclause (d) repeals S 79(13) as a consequence of the proposed amendment of S 79(1).
He concluded the presentation by explaining that the drafting of the bill was done by task team which Ms Teunissen was a part of and was then made available for comment by interested parties.
Adv G Breytenbach (DA) said that the Committee should let Ms Teunissen who was part of the drafting team speak about the bill.
The Chairperson replied that it was not necessary for her to speak about the drafting of the bill as it had already been drafted and that the drafted amendment is what needs to be dealt with.
Mr B Bongo (ANC) wanted to know how the team responsible for drafting the bill was constituted and was concerned about the terms at play. He noted the term “intellectual capacity” and wanted to know who was responsible for defining these terms. He said that the amendment looked as though it caters to a certain section of the entire population because it is very technical and the terms are very broad. He reiterated that the substance of the terms must be considered and the yardstick according to which someone is considered intellectually incapable must be clearly defined and objective.
Mr L Mpumlwana (ANC) pointed out that there was no provision for traditional healers in the bill and asked why they are not allowed a part in the processes outlined in the bill. He noted that there was only provision made for western psychologies and explained that this could be detrimental because African and Western psychology may have differing views on someone’s mental capacity.
Ms M Mothapo (ANC) asked whether there was enough time to pass this bill properly considering the looming deadline and whether an extension should be requested.
The Chairperson said that transformation of the legal system can not be done without transforming the law curriculum and that the questions raised by members point to an urgent need to change the law curriculum to be more diverse and inclusive. He also said that it seems government has left this matter to universities that can then determine the pace of transformation but universities were not elected, the national assembly was in order to transform the country radically.
The Chairperson explained further that Indigenous African people are very spiritual, that some conditions relating to mental capacity can only be dealt with by looking at the spiritual and that this raises issues of how to accommodate this African perspective into the law without causing further prejudice. He concluded by pointing out that South African society is diverse and that diversity must be reflected in legislation to avoid administering injustice in the name of justice.
Mr W Horn (DA) reminded the Committee that in some instances it is involved in setting the agenda for the Department but in others; its job is to react to the Constitutional Court judgments and address constitutional inconsistencies in legislation. He felt that members were conflating those two functions and did not want to address the merits of the comments about transformation but respectfully asked the Committee to focus on the task at hand and not lose sight of the fact that they are dealing with a specific technical bill. He also warned that if the court does not grant an extension and the Committee delays the finalisation of the bill for irrelevant reasons, the court may take over and read in to rectify the legislation leading to a possible separation of powers issue.
Adv Breytenbach asked whether there are procedures in place to insure people placed in prisons due to a lack of bed space in psychiatric facilities are moved as soon as beds become available at those psychiatric facilities. She also stressed the fact that people could not be left in prison indefinitely until beds become available and that doing so is unjustified.
The Chairperson said that matters can not be looked at narrowly and that the technical and substantive aspects of the matter at hand must be dealt with holistically. Stating the need for transformation in law once again, he stressed the need for lawyers who deal with matters holistically and that this required a transformation of the law curriculum. He also noted that work regarding these issues of transformation were assigned years ago but and that there has been no report back from the various parties.
The Chairperson then explained that the Committee should not rush to meet the deadline at the expense of justice but that if they need more time to consider the bill they need valid reasons to present to the court in order to request an extension.
Ms M Pilane-Majake (ANC) said that she supported the Chairperson's concern regarding outstanding work and the slow pace of transformation. She asked whether the Department was aware of outstanding work and the reasons therefore and suggested an audit of outstanding work. She noted the fact that the bill had been with the Department for 24 months and felt that the Committee was now being rushed and not given enough time to apply their minds because of the Department's delay.
The Chairperson said that the University of Fort Hare was given money to assist with the transformation of the law curriculum and they need to account and report back. He pointed out that there are many unemployed black graduates who could be part of the task teams necessary to bring diversity into the law and noted that everyone’s input is needed: Indians, Coloured, African and White South Africans.
Mr Basset explained that it would be difficult to reply to all the comments made by members but that he would ask his colleague to address the concerns about the terminology in the bill. He also said that it could be helpful to get an appropriately qualified person to address the Committee regarding the debate around the psychological aspects. Finally, he acknowledged that the bill does not deal with traditional healers and that it is something that must be thought about moving forward.
Mr Du Preez explained that it is not necessary to define the terms “mental defect” or “intellectual disability” because in practice there is one test to be applied to determine whether a person is capable under s77. The test is whether the person understood what he was doing was wrong and whether he had capacity to act in accordance with that understanding.
Ms Teunissen began to explain that during the drafting process there was disagreement on what the default position should be regarding the number of psychiatrists on a panel in criminal cases.
The Chairperson replied that the technicality in terms of number was not helpful and wanted to know what the substantive differences were between members of the panel, for example whether they required different expertise from each member.
Ms Teunissen addressed Adv Breytenbach's concern and said that it is the responsibility of Correctional Services to ensure people are moved from prisons to psychiatric facilities when necessary and that there is a protocol in place to facilitate that.
Mr Du Preez added that there is a sifting measure in place to ensure this process does not exacerbate the overcrowding at prisons. An intellectually disabled accused will only be sent to prison in terms of the Act if he is a threat to himself or others and there is no available bed at a psychiatric facility.
Adv Breytenbach replied that she understood what was being aimed at but that in reality some people spend up to two years in prison waiting for a bed at a psychiatric facility and that there must be a better way of dealing with that because it is unacceptable.
The Chairperson said that it is agreed that there will be another sitting at which suitably qualified people will present on the terminology and psychological aspects at play as well as traditional healing.
Mr Horn asked whether public comment would be invited at that stage.
The Chairperson replied that there would be no public comment allowed because it is just to get clarity on certain aspects of the bill.
Briefing by the Magistrates Commission on the suspension of magistrates
The Chairperson asked Mr Meyer why he was sitting before the Committee alone.
Mr Meyer replied that his colleague could not attend the meeting today and that there are not many other people involved in this case.
The Chairperson questioned whether there was enough transfer of skill and involvement of unemployed graduates at the Commission
Ms Pilane-Majake agreed with the Chairperson, lamenting the lack of transfer of skills. She said that internships are mostly undertaken by black African graduates and many of them never move past internships. She called it a crisis and stressed the need to create an environment conducive to growth.
The Chairperson agreed and said that there is a need for an audit of vacancies and internships at the Department and the Commission.
Mr Meyer said that he would deliver those messages to the Commission. He then explained that the first matter at hand was that of Mr Hole a Regional Magistrate charged in 2011 with numerous charges of misconduct. He was found guilty in June last year and was ordered to be removed from office. The Magistrates Commission endorsed his removal and this recommendation was adopted by the Minister. Mr Hole took the Comission’s decision to court. Yesterday the matter was in court and Mr Hole only opposed the withholding of his salary not the removal from office but the presiding judge withheld judgement.
The Chairperson asked for clarity on what exactly Mr Meyer was asking the Committee to do, noting that it appeared he was asking the Committee to make a decision on a matter which is pending in court and expressed concern over whether or not that was appropriate for the Committee to do.
MS Pilane-Majake agreed that the Committee should wait for due process to take its course and for the case to be concluded at court first.
Mr Meyer agreed that it was the correct way for the Committee to handle it.
The Chairperson reiterated that the courts must be respected and that the Committee will not deal with matters which are pending in court.
Mr Meyer moved on to the second matter, regarding the request for the provisional suspension of Ms Monaledi, the Regional Court President of the North West. He explained that the Commission received reports about her not being in her office to do her job and for submitting false claims. A preliminary investigation was carried out and a report was compiled. There are more than 60 charges of misconduct mostly relating to the submission of false transport and subsistence claims. She also sold things from the boot of her car during working hours and fraudulently tried to get a letter of good-standing (see briefing note).
The Chairperson asked why an application for a letter of good-standing constituted fraud.
Mr Meyer replied that Ms Monaledi pressured the secretary to give her a clear certificate.
The Chairperson asked Mr Meyer what he wanted the Committee to do about the matter.
Mr Meyer replied that Parliament is needed to pass a resolution to confirm the provisional suspension of Ms Monaledi.
Ms Pilane-Majake said that there are too many suspensions of female magistrates which is concerning because there are so few female magistrates to begin with. She also thought that considering the seriousness of this matter, intervention from the auditor general was required to do forensic investigation before they confirm this suspension. She concluded by saying she advocates for women but not wrong-doing.
Adv Breytenbach agreed that women should be supported but not women who do what Ms Monaledi has done. She provides no leadership, does not do her job and makes unjustifiable claims and these issues are sufficiently serious to warrant the suspension.
Mr Horn disagreed with Ms Pilane-Majake's request for the involvement of the auditor general saying that the auditor general will not necessarily expose whether or not someone is corrupt as it is concerned with whether the necessary processes have been followed. He pointed out that the Committee should not sit with allegations and then call on other institutions to handle them.
Mr Horn strongly supported the suspension. He pointed out that the ANC government has said that it is going to fight corruption and he warned the ANC members on the committee that if they are not prepared to suspend this woman they are not fulfilling that commitment to fight corruption.
The Chairperson replied that they could not act simply because of pronouncements that were made regarding corruption and that they must look at the case objectively and act accordingly. He asked if Ms Monaledi was given warnings about her behaviour and pointed out that she had made it to the position of Regional President so he questioned why her fitness to hold office was being questioned.
Ms Pilane-Mjake said that it was a pity Mr Horn was bringing politics into the issue and that they must decide together. She reiterated that she felt it was a situation for the auditor general and that she supports women but not wrongdoing.
Mr N Matiase (EFF) asked whether Ms Pilane-Majake was opposing the suspension simply because of gender. He pointed out that there is enough evidence to warrant a suspension and that we cannot have people like Ms Monaledi in our judiciary. He said that the Committee should not turn to the auditor general as audits can be sanitised to elude justice and that the Committee must be on the side of justice to promote ethical conduct amongst public servants. He insisted that Ms Monaledi had not acted ethically and to safeguard the judiciary and the criminal justice system he moved for her immediate suspension.
Ms Mothapo relied that it is naïve to say some audits are being sanitised. She said that on face value the allegations appear very serious but that there are also questions which need to be answered by the Commission especially dealing with the letter of good-standing.
She further pointed out that Ms Monaledi had been on leave for many months and wanted to know if news of the proceedings against her had in fact reached her. She questioned the origins of the complaint against Ms Monaledi and suggested that it could be because of professional jealousy saying that she had been Regional President for many years without issue and now that she has applied for a position as a judge these things have come up.
Adv Breytenbach replied that several attempts were made to contact Ms Monaledi and that she refused to participate. She also said that to suggest that Ms Monaledi should have been sat down and told not to act fraudulently is ridiculous because she knew her duties and should have fulfilled them. She insisted that Ms Monaledi was not doing her job and that the Committee should confirm her suspension.
Mr Horn agreed that the suspension should be confirmed. He noted that it was unjustifiable to delay her suspension because they first want to know why it was allowed to escalate to this point. He said that the argument that she had been in the position for many years and that should make them less likely to believe these charges also does not hold water because people and situations change.
Mr Mpumlwana apologised for missing Mr Meyer's presentation on the matter but said that there is a conclusion that there is fraud but no thorough explanation as to that conclusion was arrived at and that he was under the impression there must still be a final investigation so they are not sure whether or not she is guilty. He wanted to know why the suspension was necessary at this stage and felt it was premature.
The Chairperson agreed that a decision could not be taken based on half-stories.
Mr Meyer replied there was an exhaustive preliminary investigation based on documents and sworn statements and that the Commission is of the view that enough evidence exists that makes it inappropriate for Ms Monaledi to sit on the bench.
The Chairperson argued that it was only a preliminary investigation so there is a chance that she could be innocent.
Mr Meyer reiterated that there is prima facie evidence and that there was an exhaustive preliminary investigation.
Mr Mpumlwana asked again whether it was absolutely necessary for her to be suspended right now and why the Commission could not finalise everything first and then just move to have her dismissed.
Mr Meyer replied that it is in the interests of justice and the image of the judiciary to suspend her and that the provision in our law which allows for such suspension is there for that exact reason.
Ms Pilane-Majake said that the Committee supported the Commission looking into the matter but wanted more convincing information and suggested the involvement of a Chapter nine institution.
Ms Mpumlwana asked why the Commission had not criminally charged her if they are sure of her crimes.
Mr Horn replied that Mr Meyer had already informed the Committee that they had in fact laid a complaint with SAPS. He added that the Committee was not in a position to order the involvement of Chapter nine institutions into a Magistrate Commission investigation and that it is irresponsible not to order the suspension.
Mr Meyer agreed that it is the Magistrates Commission's place to execute the investigation and that they are acting lawfully and within their powers.
The Chairperson asked how long the inquiry into Ms Monaledi's fitness for office would take.
Mr Meyer replied that it depends on what she pleads or admits but that it would take some time.
Mr Bongo said that the Committee could not just rubberstamp this suspension order. He explained that the Committee was made up of politicians who must raise political issues like the fact that most suspensions are of black magistrates. He suggested the Committee request further information and deal with it in another sitting.
Mr Matiase expressed concern about how the investigation was done and whether it was rushed.
The Chairperson asked Mr Meyer whether he agreed that the investigation was rushed and whether he thought the audi alterum principle was observed.
Mr Meyer replied that Ms Monaledi was given numerous opportunities to be heard but that she refused to cooperate and that the investigation was not rushed.
The Chairperson said that the Committee would write to the Commission to find out how they are operating in terms of the investigation and have another meeting about the matter. He noted that just because there is a corruption problem the Committee must not look for scape goats and everyone must be given a fair case.
Mr Matiase implored the Committee to hold a moral high ground and act ethically to regain the publics confidence and felt that this decision would not do that especially considering that the Minister had endorsed suspension. He also called upon the ANC members of the Committee to act with uprightness to regain the confidence of the public which has been eroded.
The Chairperson replied that he did not think the Committee should take the matter further at this moment as they require more information to look at the merits of the request. Another meeting with the Commission and more information will be requested. He said that the Committee also needed to have a meeting with the Magistrates Commission to look into why so many black magistrates were being suspended and pointed out the need for transformation within the Commission saying that there can not be a situation where a majority white Commission is suspending majority black magistrates.
The meeting was adjourned.
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