Criminal Procedure Amendment Bill; Judicial Officers (Conditions of Service) Amd Bill: deliberations

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Justice and Correctional Services

27 May 2003
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
28 May 2003

CRIMINAL PROCEDURE AMENDMENT BILL (STEYN); JUDICIAL OFFICERS (CONDITIONS OF SERVICE) AMENDMENT BILL: DELIBERATIONS

Chairperson:
Adv J H de Lange (ANC)

Relevant documents:
Proposed Amendments to Criminal Procedure Amendment Bill
Criminal Procedure Amendment Bill [B57-2002]
Judicial Officers (Conditions of Service) Amendment Bill

SUMMARY
Criminal Procedure Amendment Bill
The Committee reviewed Section 309 B & C and deemed it be almost finalised. Sections 315 and 316 still require further amending. They also discussed how to include children below the age of 16 in this Act, deciding to return to the issue at later date.

Judicial Officials (Conditions of Service) Amendment Bill
The Committee agreed to add another type of acting temporary appointment for magistrates which would allow for appointment lasting 5 consecutive court days. The Committee chose to adopt the "alternative to subsections (1) - (3)" in Clause 3 and Clause 15, which specified the process of setting the remuneration for magistrates and judges, respectively. The process of appropriating additional remuneration to magistrates acting in a higher capacity was also finalised. The Committee was satisfied that the Bill is near completion.

MINUTES

The Chairperson began the meeting, noting that there were not many members present due to other obligations.

Criminal Procedure Amendment Bill
He presented two issues to be reviewed. Firstly, he noted that interaction between the review proceedings in Section 304 and the right to appeal. Specifically, he wondered if the Act granted the person a right to appeal when the case had gone for review. Second, he suggested that they should look more carefully at how the Act dealt with children under 16 years of age. He considered that the Act should not be applicable to this age group or alternatively they should been given an automatic right to appeal in cases involving imprisonment or a fine which might result in imprisonment. He noted that these concerns arose from witnessing the state of children in prisons and the street children that fall through the cracks of the justice system. He added that these two issues would be revisited at the end.

He then began going over the document, noting that the first amendment simply involved inserting a comma in front of 'as' in Clause 1.

Section 309B
2(b)(i): The Chair suggested that "if there is a record" should be added.

2(b)(ii): The Chair noted that this section was very clear and that they did not have to deal with condonation here as it would be dealt with in its own section.

3(a): The Chair asked if it was necessary to include Rule 67 of the magistrate court by adding, "as prescribed by the rules of court".

Mr du Preez responded in the negative, demonstrating that it was already covered in section 309B 2(a).

The Chair requested that the Department draft a resolution about subsection 3. He stated that if one applies for an appeal it must be done in accordance to 309B, however rule 67 only dealt with people not acting through 3(b). He noted that they must make sure that any situations involving 3(b) did not have to be regulated within the rule. He requested that there be a response within 2 months.

4(c)(ii): Mr du Preez noted that they inserted "and demeanour" into this section.

The Chair suggested reversing "demeanour" and "credibility".

Section 309C
The Chair noted that they must be careful to make sure that any other section referring to petitions does not interfere with this section. He noted that they may be creating a loophole and to ensure against this they must examine 309C, adding that when all other sections are amended they may need to make it wider.

309C(1)(a): The Chair noted that 1(a) referred to all types of condonation. He wondered what would happen in a situation where one had received an extension by the court of the 14-day period, the case was then sent back to the court for appeal and the appeal was refused. He questioned whether 309C(1)(a) applied to this refusal. In general he questioned whether the only place to apply for condonation was the High Court, adding that if you could also do this in a lower court then this section should be changed to include another OR referring to a refusal to grant condonation.

Mr J de Lange stated that he already understood this section to mean that, noting that section 7(i)/(ii) envisages that a leave for condonation is at the High Court level.

The Chair discussed the confusion surrounding Section 309C, as to whether a leave for condonation can be requested at both the High Court level and in the trial court.

Mr J de Lange (Department drafter) clarified that this was never contemplated in 309B, and it was always intended that the magistrates must deal with it, adding that the High Court is used only once in this Bill.

The Chair suggested that it should be written in 309C(7), that it was done at the trial court level and that they must also make it clear what occurs after a refusal by the magistrate.

Mr J de Lange was unsure that a problem existed, suggesting that maybe they should make it clearer in (1)(b).

The Chair, after reading Sections 309C(1)(b) and (2), agreed, submitting that by implication it was the trial court, and that changing the 309C(1)(b) might alter 309C(7). He then suggested that the problem with subsection 7 was that it included two major concepts, and added that application for a petition should be separated from the time periods in order to simplify it.

309C(2)(iii): The Chair suggested that they add "by a lower court" after "refused".

309C(4): The Chair inquired why in this section the record was submitted to the court of appeal.

Mr du Preez offered to check the reason for this.

309C(6)(a): The Chair had two corrections. First, he suggested that they should delete "leave to call for further evidence". Second, he noted that technically it would be possible to have two different types of magistrates and asked if it would be necessary to include "as the case may be".

Mr J de Lange noted that many think that it is never necessary to include "as the case may be" in legislation because you can always tell by the context of the section.

The Chair added that until this is taken out everywhere in the Act, it should be included.

309C(7)(b)(ii): The Chair noted that this subsection included two possibilities with respect to granting an application for further evidence. Firstly, that it should have been granted. Secondly, where it has granted the application for leave to appeal but refused leave to call for further evidence. He suggested that they needed to add a third possibility to cover the scenario where further evidence is discovered after one had applied for leave to appeal. In this scenario, he suggested they should be able to apply for further evidence to the High Court, and then it should be able sent back to the Lower Court to be heard.

Mr J de Lange submitted the logistical problem with this suggestion, noting that they could only appeal to the High Court if the application had been refused and then there was no authority to approach the High Court to apply for further evidence.

The Chair suggested that the aforementioned scenario was not accounted for in the Bill. If further evidence was discovered in the time period between a refusal by the lower courts and a submission to the High Courts, nobody was authorised to address the leave for further evidence.

Mr J de Lange added that the High Court only has the authority to either grant or refuse the right of appeal.

The Chair noted that the application for further evidence must be dealt with before the granting or refusal of the appeal.

Mr J de Lange agreed and suggested that they needed a mechanism to allow the High Court to hear this application.

The Chair proposed that a third possibility be added similar to "or where leave to appeal has been refused and leave for further evidence was not applied for in the Lower Court and is now applied for in the High court, then subsection 2 applies and it is sent back to the Lower Court".

Mr J de Lange suggested that an automatic right of appeal would be better.

The Chair stated that this was not possible, and asked if he wanted to retain the test for the granting of the appeal.

Mr J de Lange responded that they wished to remove the test. He then commented on the serious initiative from the High Courts, specifically the Supreme Court of Appeal, that a new test should be created to possibly include "an appeal is likely to be successful"

The Chair commented that "likely" would be a very high threshold.

Mr J de Lange added that it must also be of some importance in law.

The Chair remarked that this would do away with factual appeals.

Mr J de Lange added that the aim was to remove moot appeals, then stated that there was no place that included the test in the Criminal procedure Act (CPA).

The Chair agreed that they should leave out the test at this stage. After reviewing subsection 8 and 9, he stated that the 309B and 309C were now at an advanced stage of finalisation. He noted that Section 315 was not ready for review.

Section 316
The Chair bought up the difficulty with the different rules of court and wondered which would apply here. He commented that this section always provided a record without making exceptions.

9(c): The Chair asked why it did not state that the record also got forwarded to the Supreme Court of Appeal subject to subsection 5.

Mr du Preez agreed in principle, but added that the reference to subsection 5 would not solve this problem.

The Chair admitted his mistake, noting that subsection 5 already contained a sufficient proviso for the handling of the record. He then asked Mr du Preez what else they had amended.

Mr du Preez responded that Section 316 1(a) would not remain in this state in law, and that it must be changed. They had to make sure that there were no cross-references to this subsection.

The Chair suggested that 316(b) needed to be further amended.

They then moved to section 317 (6).

The Chair noted that he was unsure if 6(a) was correct, as it left out the National Director. He then warned against changes of terminology like subsection 6 unless they were certain.

Mr J de Lange commented that the major dilemma with amending the CPA, was that it was done in a piecemeal manner, so they must always ensure to amend in context. He then stated that strictly speaking subsection 7 was not necessary.

The Chair stated that subsection 7 was very clear, as it addressed the problem of the convictions made before the Act, ensuring that it did not retrospectively take away the right to appeal.

The meeting was adjourned for tea.

The Chair recommenced the meeting by reiterating that Section 309 was in a stage of finality and that both Sections 316 and 315 needed further amendments.

He then addressed the two preliminary issues. He noted that 316 dealt with circumstances in which the High Court was the court of first instance, but wondered about the process for review proceedings. Specifically, Section 304 provided that decisions made by Magistrates below a 7-year tenure always went to the High Court for review. He asked if it was necessary to harmonise the two, when a matter had already gone on review, was it necessary to exclude the right to appeal.

Mr J de Lange noted that there was not much to be gained by harmonising the two, noting that the automatic review dealt with undefended accused and the process was much quicker.

The Chair then addressed the issue of children less then 16 years old. He suggested two possible solutions. First, this issue might be dealt with under the Child Justice Act. Second, Section 309 1(a) of the CPA could be amended to include a new subsection. He proposed that the Committee apply their minds to the issue and pursue the best possible path.

Ms S Camerer (DA) suggested that it should be made subject to the Child Justice Act.

The Chair stated that they must look at the cost implication of the issue, whether or not it should only include children under 16 not represented at trial or situations in which there is a term of imprisonment imposed.

The Chair then addressed Mr du Preez. He said that the top priority was amending this Bill, and that the next time they met on the Bill, it would be ready to pass. After this, they would deal with the Child issue separately. He thanked Mr du Preez and commended him on a job well done.

Judicial Officers (Conditions of Service) Amendment Bill

Clause 1: Section 9 of the Magistrates' Court Act, 1944, is amended by the substitution for subsections (3) and (4) of the following subsections
The Chair stated that acting appointments should be dealt with properly. Specifically, the Bill needed to clarify the difference between acting and temporary appointments.

Mr J de Lange (Department drafter) discussed the difference between subsection 3 and 4. Subsection 4 involves an addition to the establishment, whereas 3 was strictly involving temporary positions to fill vacancies.

The Chair proposed the addition of another clause concerning temporary appointments for less than a week. In these circumstances, he proposed that the head of the court in consultation with an official in the Department of Justice could appoint that person. This person may only be fit and proper, and not necessarily properly qualified.

The Chair then suggested that subsection 4 be changed to include four types of appointments: permanent, proper acting appointment, temporarily acting appointment, and acting additional establishing appointment, the later being for only 5 consecutive court days.
He then submitted that they needed a clause that stated that when the people acting in subsections 3 & 4 are no longer magistrates, they are still subject to disciplinary proceedings.

Mr J de Lange wondered how that person would be disciplined. He claimed that is would be difficult considering the asset registry.

The Chair emphasises that an acting magistrate for 3 months must be held accountable while they are working. He then submitted that they include a provision that stated "an acting magistrate will fall under the salary and discipline, and may be disciplined after they have left but are excluded from the asset registry.

The Chair stated that the Committee had finished with the definitions section, but asked Mr J de Lange to check the definitions with respect to other Bills.

Clause 3: Substitution of section 12 of Act 90 of 1993
The Committee considered the "Alternative to Subsections (1) - (3)", which outlines the process for establishing the rate of remuneration for magistrates. The President, after considering the recommendations made by the Independent Commission for the Remuneration of Public Office Bearers, shall determine the scale of remuneration for magistrates and publish the determination in the Gazette. The salary shall go into effect after Parliamentary approval and the salary increase, if approved, will be backdated to the time of the President's proclamation.

The Chair questioned subsection (3)(b), which states that Parliament must approve, in whole or in part, or disapprove within 45 days after the submission. He suggested that the alternative clause end after subsection (3)(a) "A notice issued under subsection (1)(a) must be submitted to Parliament for approval before publication thereof." He stated that approval or disapproval would then be left up to the political process.

Mr J de Lange suggested that the power of Parliament should be specified further.

The Chair decided that subsection (3)(b) should be kept in the Bill, but that the 45 day time frame should be deleted. He also stated that subsection (3)(c) should be removed. The Committee agreed.

Subsection (3)(b) should now read, "Parliament must by resolution-".

The Committee agreed that the alternative clause would be used both in the case of magistrates and judges.

The Chair pointed out that the wording "acting or a temporary capacity" in (4A) may not be necessary with the new definition of magistrate.

Mr J de Lange stated that although the new definition renders this phrase unnecessary, it may be necessary in order to harmonise this Bill with the other magistrates' act. He also noted that (4A)(a) necessitated that an acting magistrate work for at least one full day in order to realise the additional remuneration of the position.

The Chair stated that Mr J de Lange should find a way to ensure that such additional remuneration is only given on the basis of one full day of work. It would be too difficult for an acting magistrate to be given additional remuneration for three and a half days of work, for instance.

Mr J de Lange agreed that the additional remuneration will be difficult to calculate.

The Chair made the Committee aware of a letter from the Finance Minister explaining that such additional remuneration is appropriate, but that it must come out of the Department's budget. He stated that he would circulate the letter, especially to Mr J de Lange.

The Chair asked if the term "benefit' should be defined to include a magistrate's "pension and medical aid funds".

Mr J de Lange preferred not to include such a definition. If such a definition were created for magistrates, it would also have to be created for judges. The Department was looking into the definitions in the magistrates and judges acts, respectively. Such a definition would either lead to a wider or narrower definition of 'benefit'.

The Chair admitted that in practical terms, such a definition is unnecessary.

The Chair raised an issue with the definition of 'acting judicial officer'. He stated that in the Supreme Court Act, an acting judge is defined as someone who is doing the work of judge. In other words, the work could be done on a part time basis, or after an acting judge had returned to his or her normal place of employment. The Chair stated that such a definition should be included in both the magistrates' and judges' remuneration bills.

Returning to the issue of additional remuneration for acting judicial officers temporarily occupying a position with a higher rate of remuneration, the Chair asked what happened in the case of acting judges holding a higher position.

Mr J de Lange replied that there has never been a problem with judges, in part because the difference in remuneration for different levels of judges is slight. An judge acting in a higher capacity is currently paid the difference, even though this is not specified in the legislation.

The Chair stated that unless there is a legal reason not to specify the same mechanism for higher remuneration for an acting judge that is envisioned for an acting magistrate, such a mechanism should be created. He asked Mr J de Lange to look into this issue.

Clause 4: Amendment of Section 13 of Act 90 of 1993
The Committee considered removing subsection 3(g) that detailed Parliament's ability to pass a resolution setting aside the suspension of a magistrate. The Committee decided to retain the clause because it was the most important protection for a magistrate.

Mr J de Lange asked the Committee if the 30 days specified in the clause, which is the length of time that Parliament has to confirm a suspension, was realistic. The time restriction is in subsection (3)(c), (4)(c) and (4A)(c).

The Committee decided to take out the 30 day time period in all three subsections and replace them with "Parliament shall, as soon as is reasonably possible, pass a resolution…".

Clause 5: Insertion of section 15A in Act 90 of 1993
The Committee found no problems with this clause, which deals with benefits.

Clause 7: Amendment of Section 1 of Act 92 of 1997
The Chair noted that in subsection (d)(ii) the phrase, "includes a magistrate in an acting or temporary capacity" may be unnecessary. He asked Mr J de Lange to examine the issue.

Clause 11: Amendment of Section 8 of Act 92 of 1997
Mr J de Lange informed the Committee that footnote seven would be removed from the Bill.

Clause 15: Substitution of Section 2 of Act 47 of 2001
Alternative to Subsection (1) - (3)
As with the alternative clause detailing the setting of remuneration for magistrates, the Committee decided to adopt the alternative clause for judges. The 45 day time frame was removed from subsection (4)(b). Subsection (4)(c) was also removed.

Clause 20: Transitional Provision
The Committee decided to take out the phrase "by the President" because the phrase did not accurately reflect the process.

Closing Remarks
The Chair stated that he was satisfied that the Bill is nearing a final state. Changes to be made to the Bill are technical. He stated that the Criminal Procedure Amendment Bill was also in its final stages. Final versions will soon be ready and distributed to members. Parties will have an opportunity to review the Bills with their members before the Committee holds a meeting for both Bills. He stated that the Committee was making progress towards the completion of a major court restructuring.

The meeting was adjourned.

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