Criminal Procedure Amendment Bill; Alteration of Area of Jurisdiction, Eastern Cape; TRC Amendment Bill: deliberations; UN Conve

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
19 August 2003
CRIMINAL PROCEDURE AMENDMENT BILL; ALTERATION OF AREA OF JURISDICTION, EASTERN CAPE; TRC AMENDMENT BILL: DELIBERATIONS; UN CONVENTIONS/PROTOCOLS ON TRANS-NATIONAL CRIME: BRIEFING

Chairperson: Adv. De Lange (ANC)

Documents handed out
Criminal Procedure Amendment Bill Working draft as of 19 August (email [email protected] for document)
Revised draft United Nations Convention against Corruption
Explanatory Memorandum on ratification of the United Nations Convention Against Transnational Organized Crime and Protocols thereto.
Protocol to Prevent, Suppress and Punish Trafficking in Persons
Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the United Nations Convention against Transnational Organized Crime
Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition
Notice to alter the areas of jurisdiction in the Eastern Cape
Proposed amendments to TRC Act (Promotion of National Unity and Reconciliation Act) (Appendix 1)
Promotion of National Unity and Reconciliation Act No.34 of 1995
Nieuwoudt v Chairman, Amnesty Subcommittee, Truth and Reconciliation Commission 2002 (3) SA 143 (C)
Extended Legislative Programme of the Department of Justice as at 8 August 2003
Progress Report for the Department of Justice (email [email protected] for document)


SUMMARY
The Committee deliberated on the Criminal Procedure Amendment Bill and few changes were effected. This was followed by a briefing on the UN Convention and Protocols against Transnational Organized Crimes. The Committee agreed that for it to approve the ratification, there was a need for a detailed implementation plan from the Department with a breakdown of each responsibility that had to be implemented by South Africa. In perusing the alterations to the area of jurisdiction in the Eastern Cape, it was noted that for serious criminal cases and civil claims over the amount of 120 000, the areas of Mzimkhulu and Maluti of the former Transkei would now fall under the Pietermaritzburg High Court. There were final deliberations on the Truth and Reconciliation Amendment Bill. The Committee will vote on the Criminal Procedure Amendment Bill and Truth and Reconciliation Amendment Bill next week.

Minutes
Criminal Procedure Amendment Bill
The Committee reviewed the proposed amendments effected to the Bill subsequent to the previous meeting on the Bill.

Clause 2, 309 Application for leave to appeal
The Chair pointed out that the Bill should spell out clearly that when one was applying for an appeal, one would automatically suspend one's right to a review application. He pointed that there was nothing that had been substantially changed in Clause 2 save that in sub clause 2 (2)(d) there was a need to change the reference to the Director of National Prosecutions to the National Director of Public Prosecutions or any other person designated by him/her.

Sub clause 2(2)(5)
Mr J de Lange (Legislative drafter) pointed out that the word "decision" has been deleted because it had become a generic term and has been replaced by the word "order".

The Chair noted that the substantive issue in sub clause 2(2)(5) was whether an accused person had the right to adduce further evidence on sentencing if s/he feels that the court has given him/her a harsher sentence.

Clause 3 Amendment of section 315 of Act 51 of 1977
The Chair pointed out that Section 315 as amended applied to two kinds of courts: the full bench of the High Court and Supreme Court of Appeal.

He noted that in sub clause 3(2)(b) the word "shown" has been added and sub clauses 3(2)(b) and (c) applied where one was asking for an appeal against a full bench.

Clause 4 Substitution of section 316 of Act 51 of 1977 as amended
The Chair proposed the insertion of "conviction" in sub clause 4(3)(a).

Mr du Preez (Legislative drafter) explained that at that stage a court has handed down a judgement but not necessarily given a conviction on sentencing. Hence there might be technical problems if the word "conviction" is included.

The Chair referred to 4(3)(d) and asked why Clauses 5, 9 and 16 were not included.

Mr du Preez pointed out that they wanted to limit that provision to clauses which dealt with application.

The Chair asked the drafters why in 4(3)(d) they have referred to Clause 4 and not referred to Clauses 5, 8, 9 and 10 which were provisions relating to petitions.

Mr J de Lange (Legislative drafter) explained that at sub clauses (4) and (5) one should have led all the evidence hence clause 5, 8, 9 and 10 would not apply.

The Chair proposed the inclusion of Clauses 4 and 5 in 4(3)(d)

No comments were made about subclauses 4(5) to (15)

Clause 5 Amendment to section 317 of Act 51 of 1977 as amended
The Chair asked whether the drafters were certain that Clauses 10 and 15 did not apply in sub clause 5(b).

Mr du Preez pointed out that they were still working on that clause.

Clause 6 Transitional arrangements
Mr J de Lange (Legislative drafter) advised members that the provisions in Clause 6 would remain applicable pending the amendments and would only be changed after the amendments.

The Chair thanked the drafters and pointed out that that no further draft would be produced.

Briefing on the UN Conventions and Protocols
Mr Makhubela (Department of Justice) in his presentation set out the history, purposes and consequences of the Convention and Protocol 1 [To Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children], Protocol 2 [Against the Smuggling of Migrants by Land, Sea and Air], and Protocol 3 [Against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition] (see Explanatory Memorandum).

The chief object of the Convention and Protocols was to promote co-operation and combat transnational crime more effectively. He set out the implications as contained in the Convention and Protocols commentingbriefly highlighted the implications for Parliament ratifying the UN Convention Against Transnational Organized Crime and the Protocols supplementing it

Discussion
The Chair asked why there was no document from the Department, setting out the implementation and consequences arising from ratifying the convention and protocols. The Committee could not approve ratification without this. He asked Mr Makhubela to consult with the inter-departmental committee and draft a detailed implementation plan, setting out a full break-down of each responsibility that had to be implemented by South Africa.

Mr Jeffery (ANC) was concerned that that the Explanatory Memorandum to the Committee was outdated with regards to the Acts it was referring to, for example its reference to the Explosives Act of 1956 which has been repealed and the Sexual Offences Act which was in the process of being repealed.

Mr Makhubela said that they would amend the Memorandum and supply the Committee with an amended version.

Notice of alteration of areas of jurisdiction for the Eastern Cape
Ms Mahlawe (ANC) was concerned that the Eastern Cape areas of Mzimkhulu and Maluti were going fall within the High Court jurisdiction of Pietermariztburg which is in another province, KwaZulu Natal..

The Chair pointed that the implications of the Notice meant that where there was a serious criminal case in the areas of Mzimkhulu and Maluti that had to go to the High Court, such matters would now go to the Pietermaritzburg High Court. Any civil claims above R120 000 would also fall under the Pietermaritzburg jurisdiction.

Mr Jeffery asked if it would not be cumbersome for Eastern Cape state advocates who needed to view the case documents, to have to be referred to the Pietermaritzburg High Court in KwaZulu Natal.

The Chair pointed out that the problem with the members' concern was that it equated justice with provincial competence and was against the provisions of the Rationalisation Bill. In the long term once the national courts have been rationalised, the courts below, like the regional courts, would also follow the same process and that process would also include offices of the Prosecuting Authority and Masters Office.

He noted that the Committee would vote on the Notice of alteration of areas of jurisdiction for the Eastern Cape on 26 August.

Truth and Reconciliation Commission Bill
The Committee went through their proposed amendments to the Bill:

Clause 40 Regulations
No comments were made.

Clause 42 President's Fund
The Chair referred to Clause 42(2A) of the Bill and proposed the insertion of the phrase "by way of reparations or rehabilitation" so that the clause would read: "there shall be paid from the Fund all amounts by way of reparations or rehabilitation towards the rehabilitation of communities in terms of regulations made by the President".

Clause 43 Power of Minister after dissolution of Commission
The Chair was of the view that the Minister had to have powers equal to those of a chairperson of the committee to establish a committee by making a notice in the Government Gazette.

Referring to Clause 43(A)(5), he pointed out that whatever powers the Amnesty Committee or Commission had in respect of amnesty would now vest with the Minister.

Adv. Masutha (ANC) asked if there would not be any problem with granting the Minister such wide administrative powers.

The Chair asked the drafter to draft a general clause setting out the general powers of the Minister more specifically after the Amnesty Committee has been dissolved.

The Chairperson noted that the following week the Committee would vote on the Criminal Procedure Amendment Bill, the Truth and Reconciliation Bill as well as the Notice of alteration of areas of jurisdiction for the Eastern Cape.

The meeting was adjourned

Appendix: TRC
40. Regulations

(1) The President may make regulations -

1. prescribing anything required to be prescribed for the proper application of

this Act;

2. prescribing the remuneration and allowances and other benefits, if any, of

commissioners: provided that such remuneration shall not be less that that of a judge of the Supreme Court of South Africa;

3. determining the persons who shall for the purposes of this Act be regarded as

the dependants or relatives of victims;

4. providing, in the case of interim measures for urgent payable over a period of

time, for the revision, and in appropriate cases, for the discontinuance or reduction of any reparation so paid;

5. prohibiting the cession, attachment or assignment of any such reparation so

granted;

6. determining that any such reparations received in terms of a recommendation

shall not from part of the estate of the recipient, should such estate be sequestrated;

7. providing for the payment or reimbursement of expenses incurred in respect

of travel and accommodation by persons attending any hearing of the Commission in compliance with a subpoena issued in terms o f this Act;

8. with regard to any matter relating to the affairs of the Fund, established in

terms of section 42;

(hA) with regard to any matter which is necessary for the effective allocation of the

amounts as contemplated in section 42(2A);

9. with regard to any matter which the President deems necessary or expedient

to prescribe in order to achieve the objects of this Act.

(2) Any regulation made in terms of subsection (1) which may result in the expenditure of State money shall be made in consultation with the Minister and the Minister of Finance.

42. President's Fund

(1) The president may, in such manner as he or she may deem fit, in consultation with the Minister and the Minister of Finance, establish a Fund into which shall be paid-

(a) all money appropriated by Parliament for the purposes of the Fund; and

(b) all money donated or contributed to the Fund or accruing to the Fund from any source.

(2) There shall be paid from the Fund all amounts payable to victims by way of reparations in terms of regulations made by the President.

(2A) There shall be paid from the Fund all amounts payable towards the rehabilitation of communities in terms of regulations made by the President.

(2B) Any funds or property which, by a trust. donation or bequest. vests in or accrues to the Fund. shall be dealt with in accordance with the conditions of such trust, donation or bequest.1

(3) Any money of the Fund which is not required for immediate use may be invested with a financial institution approved by the Minster of Finance and may be withdrawn when required.

(4) Any unexpended balance of money of the Fund at the end of a financial year, shall be carried forward as a credit to the Fund for the next financial year.

(5) The administrative work, including the receipt of money appropriated by Parliament for, or donated for the purposes of, the Fund or accruing to the Fund from any source, and the making of payments from the Fund in compliance with a recommendation in terms of this Act, shall be performed by officers in the Public Service designated by the Minister.

(6) The Minister shall appoint an officer designated under subsection (5) as accounting officer in respect of the Fund.

(7) The Auditor-General shall audit the Fund and all Financial statements relating thereto, and the provisions of section 6 of the Auditor-General Act, 1989 (Act No.52 of 1989), shall apply in respect of any such audit.

Nieuwoudt, (Du Toit and Ras) vs Chairman, Amnesty Subcommittee, Truth and Reconciliation Commission, 2002 (3) SA 143 (C): Proposed amendment to the TRC Act in order to comply with the court order.

(1) If, after the dissolution of the Commission, it appears that the Amnesty Committee, any subcommittee of it contemplated in section 17(2A)(b) or any other committee of the Commission is required to reconvene as a result of any order or finding of a competent court, the Minister may, by notice in the Gazette, reconvene the relevant committee for the purpose set out in the said notice.

(2) A committee that has been reconvened under subsection (1) shall have all the powers to deal with the matter for which it was reconvened that it would have had prior to the dissolution of the Commission.

(3) The Minister may in the notice contemplated in subsection (1) after consultation with the Minister of Finance, authorize the expenditure with regard to the functioning of the reconvened committee and may determine how the expenditure is to be regulated.

(4) The Director-General of the Department of Justice and Constitutional Development shall provide the necessary administrative staff required by the relevant committee for the execution of its functions.

(5) If a member of the original committee cannot serve on the reconvened committee, the Minster may, if it will serve the interest of justice and the purposes of the Act, appoint a new member in that members position.

(6) If it is for any purpose required after the dissolution of the Commission that a proclamation contemplated in section 20(6) be made or amended, the Minister may make such proclamation or amendment in the Gazette.