Judicial Officers (Conditions of Service) A/Bill; Mutual Legal Assistance in Criminal Matters Treaty with China

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
18 June 2003
JUDICIAL OFFICERS (CONDITIONS OF SERVICE) AMENDMENT BILL; MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS TREATY WITH PEOPLE'S REPUBLIC OF CHINA; CRIMINAL PROCEDURE AMENDMENT BILL: DELIBERATIONS

Chair: Adv J. de Lange

Documents handed out:
Working draft of Judicial Officers (Conditions of Service) Amendment Bill
New provision in Criminal Procedure Act for parliamentary oversight of Unreasonable Delays in Trials
Memo on Mutual Legal Assistance in Criminal Matters Treaty with People's Republic of China (see Appendix)

SUMMARY
The Chair was disappointed that after two weeks of very good submissions from a variety of stakeholders where the real issues facing the justice system had been grappled with, the erroneous media reporting that he had labelled the judiciary "lazy" had taken the Committee's eye off the real issues. It was imperative that they worked hard to find solutions to the justice system's problems such as reducing the backlog of court cases and reorganising the regional structures.

The Committee was briefed on the Mutual Legal Assistance Treaty with the People's Republic of China.

A clause was added to the Criminal Procedure Amendment Bill so that the Committee can oversee trials which had an excessively lengthy start date. Twice a year the National prosecuting Authority will have to provide a list of those prisoners who have been awaiting trial for longer than a year.

The Judicial Officers (Conditions of Service) Amendment Bill was readied for voting on 20 June. This Bill was the first step in drawing the Magistrate's Commission into line with the workings of the Judicial Commission. The Committee hoped by year end to have passed four Bills, three relating to disciplinary matters and this one on the conditions of service. By next year, the Committee would begin to look at the structure of the Court system.

The Committee envisages a very busy period next year in order to finalise the Child Justice Bill, Anti-Terrorism, HIV/AIDS, the Truth and Reconciliation Commission amendment and others. Altogether there are approximately ten Bills to be passed.

MINUTES
The Chair referred to the events over the weekend where media reports had erroneously reported that he had labelled the country's Judiciary "lazy." He said that he hoped the matter could be put behind the Committee. It was in the interests of neither the Judiciary, the Portfolio Committee nor Parliament to have this unseemly interaction continue via the media. He said he hoped that the Committee could discuss the issues privately and that the forthcoming Judicial colloquium would be a good forum for the issues to be aired by the judges.

He said the Portfolio Committee had heard two weeks of very good submissions from a variety of stakeholders where the real issues facing the justice system had been grappled with. He was worried the Committee's eye had been taken off the real issues as it was imperative that they worked hard to find solutions to the justice system's problems. These issues included bringing down the backlog of court cases and reorganising the regional structures.

He believed that the rights steps had been made towards this goal last Monday when he spoke to the Chief Justice and they had covered salaries, recess periods, productivity, etc. It had never been the Portfolio Committee's intention to be seen as personally attacking the independence of the Judiciary and he could not imagine how this could have happened.

He said that there were some interpersonal issues which needed to be dealt with.

The Portfolio Committee under his chairmanship had always been a staunch supporter of the independence of the Judiciary and the comments at the hearings were made to strengthen the system. This is happening rapidly and the Committee were absolutely committed to continuing their oversight duties. The Committee vigorously challenges the Department and, where shortcomings exist, it points these out. But the Committee must also look at the people on the ground to see if they need to make improvements too.

The Chair said he was delighted to see that the Chief Justice had issued a Press Statement which stated that when he attended the Committee Hearing he was treated courteously and saw nothing to suggest that the Portfolio Committee did not respect the Judiciary. However, the Chair said that he intended to continue discussions with the Chief Justice to make absolutely sure that there was nothing in the Committee's attitude or statements which could lead to future problems.

Ms Camerer (DA) said that the recent oversight visits had been revolutionary as it permitted better monitoring - it allowed the Committee to understand the workings of Government better and provided concrete examples for discussion. However, she said that something had gone wrong with the Judges and it was important to stress that Parliamentary oversight was not to be confused with Parliamentary control. The productivity of judges was an issue to be looked at, but the Chief Justice had said there were many issues too.

The Chair interrupted, saying that nothing had gone wrong with the Judicial Hearing. Ms Camerer (DA) said that it was clear that an erroneous interpretation of the Committee's views had been supplanted for the committee's real view, and that the Committee had to take cognisance of this to ensure it was not replicated in the future.

The Chair said that an interpretation of the Committee's views which was arrived at by people who were not even present at the meeting could not be responded to. The meeting with the Judges did not create any confusion.

Mr Landers (ANC) said that he had hoped that the introductory remarks should have moved the Committee off the topic, but Ms Camerer's comments led back to her party's response that there was a problem. The Chief Justice had been so pleased with the meeting that he had asked for it to become "institutionalised". He asked Ms Camerer if she believed that Adv de Lange had made the comments that the judges were "lazy" and if so, could she say where they had been made?

The Chair refused to let Ms Camerer respond to the question as he said these discussions must continue in private. He said that the issue was taking up too much energy. He did not relish being caught up in a row with senior judges. He was very sad that after two wonderful weeks of hearings this issue had put a bitter taste on events.

Mutual Legal Assistance Treaty with People's Republic of China
Mr Allers from the Department, went through the Explanatory Memo. The Committee confirmed that the right Minister had signed the Treaty (he had), what language had been used (English), if China had a Constitution (it does), if all the people of the People's Republic of China were happy with the Treaty (the Department could not speak for all the people of the People's Republic of China), and if the Treaty already had force and effect in the People's Republic of China (Mr Allers said he would need to get back to the Committee on this).

As the Committee did not have a quorum, the Treaty could not be accepted for ratification.

Judicial Officers (Conditions of Service) Amendment Bill
Mr de Lange, the Departmental drafter, took the Committee through the amendments they had suggested in the previous meeting:

Clause 1
He said that Clause 1 had been extensively redrafted. The Van Rooyen judgement had collapsed section 9(4) of the original Act.

The clause had to cover three basic scenarios:
- the appointment of a magistrate to cover an emergency vacancy
- the appointment of an additional magistrate by the Minister for a very short period of no longer than five days.
- a longer appointment by the Minister of up to 90 days.

The Chair asked why sub clause (3) did not state that it was subject to (4) and (5). Mr de Lange said it referred to two different scenarios but perhaps some link could be found and the wording reformulated.

The Chair asked why in sub (5)(b)(i) the Minister required to be informed? Ms Chohan-Kota (ANC) accepted that the Committee had tentatively agreed on the short appointment of five days, however, she asked if it was not too short. If the appointment of an acting Magistrate requires the approval of the Minister, then five days may not be long enough. The Chair said that the replacement Magistrate could be appointed for subsequent periods of five days. Mr de Lange asked if the Committee wanted this reappointing to be limited to no more than three times? Mr Maseka (UDM) asked whether sub(4)(b) should not have the words "to act" removed and replaced with the word "temporary". This was accepted as a good suggestion. The Chair asked, why the time period had been included initially? Mr de Lange said that it was over-caution as one of the issues raised in the Van Rooyen case was the potential for the Executive to control the Magistrates via the discretion of the tenure of office. The Chair mooted altering the words to read "while the person is absent", but they decided that Mr Maseka's initial suggestion was better.

Ms Chohan-Kota (ANC) asked if the reference to "up to five days" could be altered by adding "subject to additional conditions to be determined by the Head Magistrate" as this would then allow for a scenario where a person could be appointed for up to five days but could conditionally end if the magistrate returned. She also suggested the addition of "for the duration of the absence".

Dr Delport (DA) asked why Parliament had to be informed of the vacancy? The Magistrate's Committee could take months to fill the post. The Chair said that it was part of the Parliamentary oversight role. Dr Delport (DA) asked whether the provisions of the Bill reflected reality? Was it not the case that the Magistrate's Commission informed the Minister? Ms Chohan-Kota (ANC) said that the Department informed the Magistrate's Committee.

The Chair drew the Committee's attention to the fact that there was two different tests to determine who could be appointed as a temporary or acting Magistrate. In sub (3) the appointee had to be "appropriately qualified and fit and proper" whereas sub (4)(b) only required the person to be "competent". He asked Mr de Lange to confirm that the reason for this was to ensure that small towns would be able to appoint someone in an emergency even though there was not someone with an LLB degree, etc. Mr de Lange said he was not sure. The Court made the distinction in the Van Rooyen decision and it certainly seemed to be an accepted interpretation. But he was not sure if it was strictly correct. The Chair said he was aware that there were two contrary judgements on the issue of the qualifications of Magistrates. He asked Mr de Lange to provide the Committee with the Judgements.

The Chair instructed Mr de Lange to alter sub (5)(a) to allow it to be used over and over again but not to put a limit on the number of times a person could be so appointed. The Committee were simply trying to stop the situation whereby temporary appointments of over a year were being made. But sub (6) allows for Magistrates to be retained if a Magistrate had begun to sit on a very long trial.

The Chair asked if a transitional arrangement was needed? Mr de Lange said that there was no need for transitional arrangements as they had discussed this already, but he could not remember why they had come to that conclusion. Dr Delport (DA) asked whether a clause stating "notwithstanding this section, all appointments made earlier remain in force"? The Chair said a clause such as that may be clearer so he asked Mr de Lange to think about it.

Adv Masutha (ANC) said that sub (6) was an additional clause and asked if the Bill should not allude to the difference. The Chair said no, but Adv Masutha pursued the point asking what the distinguishing element between sub (3)(a) and (4) was? The Chair said that the difference related to a matter of degree and it was to be made subject to sub (4) and (5). However, Adv Masutha (ANC) said that it was his understanding that the choice between the type of appointments was not supposed to be discretionary but this did not appear clear from the terms of the wording of the clauses. The Chair clarified this point with Mr de Lange. He asked that as the Head of the Court was appointing in consultation with the Minister, did this mean that the Department had the power to decide on which basis to appoint? Mr de Lange said that this was the case and that the internal procedures had been put in place in the Department to ensure that the appointment was made on the correct basis and in line with the right section.

Mr Maseka (UDM) said that he was concerned that clause 4(b) allowed for a "competent" person to be appointed, yet clause (6) allowed for the person to hear the whole case by extending their appointment. This was worrying and asked why the same criteria could not be used for both types of appointment. The Chair said that initially the Bill had intended to change the qualifications required for Magistrates, but they changed their mind because they did not trust the Regional Committees of the Magistrate's Commission to determine the criteria of appointment. Also the site visits had thrown up examples of excellent Magistrates who could not be promoted to the Regional Courts due to a lack of qualifications. Sometimes in small towns an unqualified person had to stand in for an absent magistrate. However, there was no reason why a "competent person" could not be read as tantamount to a "qualified and fit and proper" person.

Ms Camerer (DA) asked when the Committee would be asked to vote on the Bill as she needed to present it to her party caucus. The Chair said that the Judges wanted the Bill passed before Parliament went into recess. Next week the hearings on the Anti-Terrorism Bill would take up all their time. Therefore, he wanted the Committee to vote on the Bill on Friday 20 June. She undertook to take the matter to caucus on Thursday.

The Chair asked Mr de Lange if sub (6) would cover misconduct issues? Mr de Lange said that it did but that it was unlikely that a temporary appointee would need to be removed from office as the period they held office would be so short it would simply run out.

Adv Masutha (ANC) said that he found the phrase "cause Parliament to be informed" odd in sub (5)(b). Should it not say "Tabled"?

Clause 2
He said that the definition of Magistrate had excluded acting Magistrates in the Magistrates Act in order to exclude them from receiving the Magistrate's salary and conditions of service. However this was changing.

Clause 3
The Chair noted that the Finance Minister had just announced that people holding temporary judicial office were to receive the remuneration of the highest office. Ms Chohan-Kota (ANC) said that these payments were only to be backdated to January 2003.

The Chair asked if sub (4A) should not read "temporary or acting"? Mr de Lange said no, but Ms Camerer (DA) said that when Regional Magistrates were appointed to the Bench they became "acting judges" not "temporary judges". Mr de Lange said these issues were dealt with by two different Acts. The Chair felt uncomfortable that the clause was unclear about referring to temporary and acting appointments. He asked for suggestions on other formulations and asked if "temporary" needed to be used at all? Mr de Lange said it would be absurd to remove temporary. Dr Delport (DA) suggested removing "ordinarily" and to instead add at the end "in permanent capacity".

Dr Delport also said that he would like to query the phase "in question" as seen in sub (4A)(a)(ii) as he had never seen it before. Mr de Lange said he had spoken to Mr Bassett about that and it was acceptable drafting language.

Adv Masutha said that the word "temporary" did cover both temporary and acting. He suggested that the issue dealt with by the clause, that of the calculation of the salary differential, should not be a matter for legislation anyway. Instead, the clause should say "by a formula determined by [someone]". The Chair said that there was no confusions created by the provision as it could only refer to the difference in salary. Adv Masutha asked for confirmation that their remuneration had not been defined as anything other than their salary, or could not be construed as anything other than their salary. Mr de Lange said that he had over compensated with this clause and that he doubted it would ever become an issue. Adv Masutha said that he remained convinced that the computation of the salaries should not be detailed in the legislation. The Chair said that there was value in this suggestion and asked Mr de Lange to formulate the appropriate wording. Adv de Lange said that there should be an Administrative Chart, drawn up by the Department to show the differential of salary the Magistrate was due to receive. Dr Delport (DA) agreeing with the suggestion said that the Bill should place this responsibility in the Minister. The Chair explained to Mr de Lange that the problem was that the Bill stated the person was "entitled" to receive the difference, so this was creating a real right and so must be absolutely clear. Mr Solomon (ANC) asked if this issue was not dealt with in sub (4A)(b) where it stated that the remuneration would be calculated "by the day"? Ms Chohon-Kota (ANC) explained that this was merely to make clear that Magistrates would be paid for an entire day even if they only worked a portion of it.

The Chair also asked Mr de Lange to remove the Parliamentary notification time scales referred to in sub (4) and (4A). The Chair asked if the Committee were pleased with the reworking of the clause and they confirmed that they were.

Clauses 16 and 17
Mr de Lange said that the Committee had debated this issue fully. Married Magistrates did not pose a problem as marriage was clearly regulated by law. However, the situation with regard to life partners was more complicated as there was no formal mechanism in place to state categorically when the Partnership dissolved. There was a Departmental problem with regard to this clause as, for the purposes of this Bill, the terms spouse and partner referred to who received a pension when they survived the judge. However the regulations refer to living and dead partners. He queried the need to have the term "surviving spouse" in clause 17. Ms Chohan-Kota (ANC said that he was trying to remove the wrong "surviving" as the Committee did not want the spouse's estate to have a claim on the pension and other rights if they died very shortly after the judge. Mr de Lange said that he failed to see the need for the word. Mr Solomon (ANC) asked if a reading of the complete sub clause did not make the issue clear enough to remove the word?

Ms Chohan-Kota (ANC) said that removing the word would make it the case that if the judge died on day one and the spouse died on day three, despite there being such a short period of time, the spouse would receive the gratuity. Was that what the Committee wanted? The Chair asked Mr de Lange to check out this issue.

Ms Chohan-Kota also asked what the "fixed date" was which was referred to in clause 17. The Chair said that this was the date of commencement. Mr de Lange said that these provisions cross-referenced to other Acts and that surviving spouses who became eligible before the date of commencement would be dealt with under the former legislative provisions.

Clause 21
Mr de Lange asked if the Bill required a commencement clause? The Chair told him to make the date of commencement 1 October 2003. The Chair also asked Mr de Lange to check that the Long Title of the Bill was accurate as he was concerned when he read through it that there were some inaccuracies.

Mr de Lange asked if the Chief Justice had asked the Committee why Parliament had to approve the salary of the judges. The Chair said that this issue had never been raised but that Parliament had to. Parliament approved the President's salary. The only reason the Portfolio Committee did not approve the salaries of Traditional Leaders was because other Departments dealt with this.

Ms Camerer (DA) stated that she would not be able to attend the Committee meeting on Friday so she would try to arrange her alternative member, Mr Smut, to attend. However, if he was unable to do so she said that the Chair would have to note the DA as having abstained from voting. The Chair noted her point.

The Chair said that he had personal issues with the Bill as it was leading to an unfortunate lack of coherence over the salary payments of the judiciary. He would much rather have the system rationalised as this was the easiest, cheapest and most straightforward option. But it was proving impossible to implement as the Department was pushing ahead with asymmetric development.

Criminal Procedure Amendment Bill (Steyn Judgement)
The Chair reminded the Committee that he had told the National Director of Public Prosecutions (NDPP) the intention of the Committee to oversee trials which had an excessively lengthy start date. Mr de Lange had been asked to devise a Table which the NDPP was to complete and return to Parliament. He said that the Table proposed was excellent (see document).

The Chair asked Mr de Lange if a similar Table could be produced where Parliament was to be informed of the reason for outstanding High Court Judgements - covering both civil and criminal cases. Mr de Lange would need to consider the criteria the Committee wanted to be reported on and why. Mr de Lange asked if this should be included in the Supreme Court Act along with other disciplinary matters? The Chair said that this was absolutely not to be seen as a disciplinary issue. It was simply in line with Parliament's oversight role.

The Chair asked Mr de Lange how close to completion the Amendment Bill was. Mr de Lange said that he had been hoping to finalise the issue next week but that the Anti-Terrorism hearings had disrupted the schedule. Mr de Lange asked if the Committee was happy with the positioning of the new sub clause. The Chair confirmed that it was in the correct place.

The Chair asked Mr de Lange to check the legality of the Head Magistrate rotating magistrates throughout different courts. Were there existing powers in place or did this require amendments to regulations or legislation? It was important the Head Magistrate had this power to ensure that all magistrates were afforded the opportunity to gain rounded experience. Mr de Lange said that section 12(4) of the Magistrates Act states that magistrates are subject to the administrative control of the Head Magistrate. The section could be tightened up if the Committee wanted. The Chair said they may need to add a clause which clearly states that the Head Magistrate can allocate the magistrates different cases and to different courts.

The Chair took the opportunity to outline to the Committee what their aims were to be for the next session. He said that the Judicial Officers (Conditions of Service) Amendment Bill was the first step in drawing the Magistrate's Commission into line with the workings of the Judicial Commission. Putting the new salary mechanism into place was the first step to alter the role of the Magistrate's Commission. The Magistrate's Commission had been approached with an outline of the Government's proposals and had broadly agreed with the changes.

Basically, the situation was to be that the Regional Magistrate Committees would act as a filtering mechanism where they would hold first stage interviews with potential magistrates. If the applicant passed this stage, they would be put forward by the Regional Committee to the "pool" of potential magistrates. The Magistrates Commission would then need to interview from this pool only. Magistrates would only be appointed to permanent positions if they satisfied a set of criteria which included that they had successfully completed an appointment as an acting magistrate.

The Chair believed the current system was unlawful as the acting periods are really seen as probationary periods which interfered with judicial independence. Also, these appointment provisions come from the Regulations and not from the primary legislation.

The Chair said he hoped there would be four Bills passed by the end of the year, three which related to disciplinary matters and one on the conditions of service. By next year, the Committee could begin to look at the structure of the Court system.

The Chair said that the next session and thereafter would be "crazy" with the Child Justice Bill, Anti-Terrorism, HIV/AIDS, the Truth and Reconciliation Commission amendment and others. Altogether there would be approximately 10 Bills to be passed before elections. Ms Camerer (DA) asked what the TRC amendment related to. The Chair explained that it was allow for the President's Fund to make payments to communities and not simply individuals.

Mr Solomon asked what the Committee's status was with regard to the Anti-Terrorism Bill? He was told that the Committee were simply a "conferring" committee.

The meeting adjourned.

Appendix

Memo on Mutual Legal Assistance in Criminal Matters Treaty with People's Republic of China

EXPLANATORY MEMORANDUM : RATIFICATION OF THE MUTUAL LEGAL
ASSISTANCE IN CRIMINAL MATTERS TREATY (THE TREATY) BETWEEN THE
REPUBLIC OF SOUTH AFRICA AND THE PEOPLE'S REPUBLIC OF CHINA IN
TERMS OF SECTION 231(2) OF THE CONSTITUTION OF THE REPUBLIC OF
SOUTH AFRICA ACT, 1996 (ACT NO 108 OF 1996) (THE CONSTITUTION)

1. PURPOSE

The purpose of this memorandum is to set out the background and to seek Parliaments
approval to ratify the above mentioned Treaty in terms Of section 231(2) of the
Constitution.

2. BACKGROUND

2.1 The Constitution provides in section 231(1) that the negotiating and signing of all
international agreements is the responsibility of the national executive. Section 231 (2)
further provides that an international agreement binds the Republic only after it has been
approved by resolution in both National Assembly and the National Council Of Provinces,
unless it is an agreement which does not require ratification.

2.2 Section 27(1) of the International Co-operation in Criminal Matters Act, 1996 (Act no 75
of 1996) (the Act) states as follows:

"The President may on such conditions as he or she may deem fit enter into any
agreement with any foreign State for the provision of mutual assistance in criminal
matters and may agree to any amendment of such agreement.".

2.3 The President approved and the Minister for Justice and Constitutional Development
subsequently signed the Treaty on behalf of the Government.

2.4 In terms of article 24(1) of the Treaty, the Treaty is subject to ratification and the
instruments of ratification shall be exchanged at a place to be determined by the
Contracting States. The Treaty shall enter into force on the thirtieth day after the date of
the exchange of the instruments of ratification

2.5) As soon as Parliament has approved the ratification of the Treaty, the Minister for Justice
and Constitutional Development will give notice thereof in the Gazette in terms of section
27(2) of the Act.


3. PERSONNEL AND FINANCIAL IMPLICATIONS
No personnel or financial implications are foreseen.

4. CONSTITUTIONAL IMPLICATIONS
The State Law Adviser (International Law) and the Chief State Law Adviser indicated that
no provision of the Treaty is in conflict with international law and domestic law,
respectively.

5. RECOMMENDATION

In the light of the above and to improve the effectiveness of the law enforcement
authorities of both countries in the investigation, prosecution and prevention of crime
through co-operation and mutual legal assistance in criminal matters, it is recommended
that Parliament approve the ratification of the Treaty.