Committee Programme 2001

Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
13 February 2001
COMMITTEE PROGRAMME 2001

Chairperson: Mr J de Lange

Relevant documents:
Department of Justice and Constitutional Development Legislative Programme 2001
Position of Acts: 31 January 2001
[above documents awaited]
Committee Continuous Agenda (See Appendix for extract)

SUMMARY
The Committee looked at the Bills which the Department will deal with as a matter of priority. The Chair expressed concern that the Compulsory HIV Testing of Sexual Offenders Bill and the Sexual Offences Bill featured so low on this priority list. He insisted that the Department give these Bills urgent attention. The Committee was also informed of the Department's progress in implementing Bills that had already been passed. The upcoming Departmental budget hearings were referred to. The Chair was sympathetic to the Department's past overspending. Although unauthorised expenditure could not be condoned, the Department had had an extremely heavy workload, implementing 75 new Bills over the past six years with limited capacity.

The Committee will undertake visits to both urban and rural courts, the Masters' Offices and the Department this year.

MINUTES
Legislative Programme: The Department's priority list
The Chair dealt with the legislative programme for the upcoming year.
- Special Investigating Units and Special Tribunals Amendment Bill
This Bill is as a result of the Constitutional Court judgement regarding a judge heading the Heath Special Investigating Unit. The Bill deals specifically with the status of the heads of these Investigating Units. The law advisors are currently considering the Bill and Cabinet has approved the draft. Public Hearings are scheduled for 6 March 2001.

- Finance Intelligence Centre Bill
This will be dealt with jointly by the Departments of Finance and Justice. Submissions have been called for and a public hearing is provisionally scheduled for 20 March 2001.

- African Parliament legislation: Constitutive Act of African Union
The Chair apologised for the late notice of the briefing meeting that would be taking place the next day on this piece of legislation.

- Administration of Estates Amendment Bill
The Chair believes that this Bill should be withdrawn, as it is necessary to look holistically at the rationalisation of the laws pertaining to this issue.

- Limitation of Proceedings Bill
This has been passed by the Committee and is now being dealt with by the NCOP. There has been a proposal from the Department that the Bill not be passed until the relevant Constitutional Court judgment provides guidance on certain issues. It makes sense to see what changes the Court has made before the Bill is passed.

- Criminal Procedure Act Amendment Bill
The way in which the Steyn judgement affects one's ability to apply for leave to appeal in the Magistrates Court was mentioned. The rationale behind this judgement was that the system of checks and balances is not as strong in the lower courts as in the High Court or the Supreme Court of Appeal. As a result, some parties will be affected detrimentally. The judgment has given parties concerned six months to fix the problem.

- Interception and Monitoring Amendment Bill
The Chair stated that this Bill, which deals with the tapping of cellular phones, had been under discussion for a long time. It will be introduced to Cabinet on 28 February 2001.

- Child Justice Bill
The Chair believes that this Bill is optimistic as opposed to being realistic because the Department lacks the budget for it. Thus in addition to having Cabinet approve it, it is also important that Treasury approves it. The Chairperson had examined the projected figures himself and stated that the accounting falls short. He believes it is necessary for the accounting to be re-examined before the Bill comes before the Committee again.

The Chair continued that when the department places a Bill before the Committee for consideration they have to ensure that government has the money to implement the Bill. He reminded the Committee that the Department of Justice has no money. He stated that although 75 new Bills had been passed, the Department lacked the funds to implement them.

An ANC member stated that it is in everyone's interest to see that the Bills get passed.

- Legal Practice Bill
It will be very difficult to deal with this Bill as there are four differing viewpoints emerging from the legal profession. The third draft of the Bill can be found on the Department's website.

- Traditional Courts Bill, the Customary Law of Succession Amendment Bill and the Application of Customary Law Bills
The Chair stated that these Bills will be also very complex and therefore difficult to deal with.

- Compulsory HIV Testing of Sexual Offenders Bill and the Sexual Offences Bill
The Chair was concerned that the Committee had not been giving the requisite attention to the passage of these bills. The Department had promised the women of South Africa that they would expedite particularly the latter Bill, which somehow kept slipping off the list. The Chair undertook to make these a priority.

In response to the Chairperson's concerns, Mr Rudman (Department of Justice) stated that input regarding the Compulsory HIV Testing Bill would be made available in the next couple of weeks. He would speak to the Law Commission about the Sexual Offences Bill.

The Chair insisted on receiving a response as soon as possible. If the Department fails to provide this response they will have to provide the Committee with reasons for their failure to do so. He stated that it is important to get these Bills on the priority list. He stated that this should not take that long as worldwide research in the field of sexual offences is exhaustive.

Implementation of legislation
The Chair stated the President would sign the Protected Disclosures Act on Friday, 16 February 2001.He stated that guidelines regarding whistle blowing can be found on the Department's website.

Parts of the Promotion of Equality and Prevention of Unfair Discrimination Act was implemented last year. The Chair expressed concern that the functions of implementation and oversight are taken away from Parliament and given to a committee created in the Act. The rest of this Act will be implemented in April this year. Regulations have been drafted and are close to finalisation.

Ms S Camerer (NNP) stated that as Members of Parliament, one should be seen to care about the state of the justice system by finding out what is going in it. She stated that it is important to give the professions, Business against Crime and the Courts the opportunity to say how they feel.

The Chair replied that this process is already in progress although a slightly different approach is being used. He stated that the question as to whether to expand their programme is dependent on whether there will be time to do so. He stated that one cannot be too optimistic and should therefore take small steps at a time.

The Chair then asked Mr Rudman what was happening with regard to the Legal Aid Guide. Mr Rudman responded that the Legal Aid Board will provide a report on the issue. The Chair told Mr Rudman to provide the Department's report on the issue as well.

Dr J Delport (DP) reiterated that the involvement of the judiciary is vital in order to determine their needs.

Departmental Budget
This year's hearings on the budget will start with the Minister informing the Committee about the major restructuring changes taking place. The Committee is awaiting a report from the Department. This report should focus on how to remedy past mistakes in order to prevent them from recurring.

The Chair said that, on the one hand, the Department's overspending might be excused if one considers the fact that 75 Bills had been passed in the past six years. It was unreasonable to expect the Department to cope with this load. On the other hand, one cannot excuse unauthorised expenditure.

The Department has to be given more time to plan for the year. It is easy to criticise if one fails to take into account the limitations on their capacity. The Committee therefore has to engage the Department in discussions. The Chair has approached the Department to assist in drafting a factual report.

An ANC member stated that in anticipation of next year's budget process, the Committee should expand on its oversight activities so that they can be well-prepared by next year.

The Chair agreed, saying that they would get UCT to assist. He did not want it to appear as if the Committee mistrusted the Department, but felt that their work on the Budget is based on the information provided by those they are overseeing. The process, which should be scientific, is therefore artificial.

Mr Delport stated that the Committee's oversight functions ended with the debating process. He felt that this function should be extended to the actual implementation process.

Future plans of the Committee
The Chair stated that two types of visits were planned for the year:
- The first is to the Courts and the Masters Office. There would be a visit to the Courts in a rural area as well. This will either be to Kwa-Zulu Natal or to the former Transkei.
- The second is to the Department of Justice. This visit will provide insight as to the circumstances under which they work and on the work that they do.

The suspension of magistrates matter will be started next Tuesday. The Chair stated that he had an opinion on how to deal with the issue. Instead of holding hearings, the magistrate can present a written submission. The Committee will receive copies of a letter to the Magistrates Commissioner responding to the allegations that the Committee is responsible for delaying the passing of the Bill.

The Chair is also in the process of drafting a letter to the Human Rights Commissioner in response to the letter that the latter had written to the Minister. This letter had requested the Minister to provide guidance to the Committee, which had not been focussing on the proper issues with regard to treaties dealing with African courts. The Chair stated that this letter had merely been alarmist. The Committee has the constitutional obligation to discuss issues and will not act as a rubberstamp.

With regard to the trip to Germany planned for later this year, the Chair is negotiating that more than six members would be allowed to go. In the negotiations, the Chair will also attempt to engage them in other projects as well.

Appendix:
PROPOSED CONTINOUS AGENDA FOR THE PORTFOLIO COMMITTEE ON JUSTICE & CONSTITUTIONAL DEVELOPMENT JANUARY - DECEMBER 2001

CHAIRPERSON: Adv. Johnny De Lange

BILLS ALREADY INTRODUCED AND PRESENTLY BEING DEALT WITH
Institution of Legal Proceedings Bill (in NCOP)
Financial Intelligence Centre Bill (Jointly with Finance Committee)

BILLS BEFORE STATE LAW ADVISORS AND DRAFT BEFORE COMMITTEE
Special Investigating Units and Special Tribunals Amendment Bill

BILLS RETURNED TO DEPARTMENT OR SALC FOR FURTHER ATTENTION
Criminal Procedure Amendment Bill (Detention of Juveniles)
Superior Courts Bill
Customary Law of Succession Amendment Bill
Administration of Estates Amendment Bill

BILLS BEING AWAITED
Criminal Procedure Amendment Bill (Steyn judgment-leave to appeal)
Judicial Matters Amendment Bill
Remuneration of Judicial Officers Bill
Readmission of Persons to the Legal Profession Bill
Application of Customary Law Bill
Traditional Courts Bill
Administration of Estates Bill
Community Courts Bill
Interception and Monitoring Amendment Bill (Cellular phones)
International Criminal Court and Related Matters Bill
Sexual Offences Amendment Bill
Judicial Service Commission Amendment Bill
(Grievance procedures relating to judges)
Judges' Remuneration and Conditions of Employment Amendment Bill
Child Justice Bill
Legal Practice Bill
Constitution Amendment Bill
Criminal Procedure Amendment Bill (Plea bargaining)
Criminal Procedure Second Amendment Bill
(State right to appeal on facts)
Compulsory HIV Testing of Sexual Offenders
Sentencing Bill
South African Rights Commission Amendment Bill
Compensation of Victims of Crime Fund Bill
International Arbitration Bill
Prohibition of Hate Speech Bill

OTHER BILLS BEING AWAITED
Public Interest and Class Actions Bill
Access to Minor Children Bill
Sharing of Pension Benefits Bill
Control of Unreasonableness or Oppressiveness in Contracts or Terms Bill
Jurisdiction of Lower Courts Amendment Bill
Regulation of Sexual Realignment Bill

LEGISLATIVE MATTERS TO BE FOLLOWED UP
Memorandum from Willie Hofmeyer regarding the Prevention of Organised Crime Act.
Administrative Justice Regulations.

NON-LEGISLATIVE MATTERS BEFORE THE COMMITTEE AND BEING DEALT WITH
Suspension from Office: Mr H Zulu, Magistrate, Port Shepstone.
Approval of the Protocol on the Establishment of the African Court on Human and People's Rights.
Approval of the Statute of the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders (UNAFRI).
Approval of the 1st and 2nd Optional Protocols to the International Covenant on Civil and Political Rights.
Approval of the Extradition and Mutual Legal Assistance in Criminal Matters Treaties between the RSA and Canada.
Approval of the designation of Ireland in terms of section 2(1)(b) of the Extradition Act, 1962 (Act 67 of 1962).

OUTSTANDING MATTERS RELATING TO IMPLEMENTATION OF LEGISLATION
Regulations of the National Prosecuting Authority Amendment, 2000 (Scorpions)
Promotion of Equality, 2000: Remainder of Act (April 2001) and Regulations.
Promotion of Access to Information, 2000: State Expenditure approval of Regulations, except sections 10, 14, 16 and 51 and await regulations.
Promotion of Administrative Justice, 2000: President on 30/11/2000, except sections 4 & 10 and await regulations.
Protected Disclosures, 2000: President on 16/02/01, and Regulations and Practical Guidelines.
Judicial Matters, 1998: section 49 of CPA - President on 10/12/00; Labour matters; Section 7 & 8?;
Witness Protection, 1998: Sections 6 & 20; Regulations.
Maintenance, 1998: Investigators.
Legal Aid, 1996: Legal Aid Guide.
Criminal Procedure Amendment Act, 1997: Legal Aid Directives.
Magistrates Courts Amendment Act, 1998: Assessors; Regulations.
Criminal Matters, 1998: State Patients (Legal Aid Directives; State Expenditure).
Criminal Procedure, 1996; Confessions; Cost Orders; Legal Aid Guide.
Sheriffs, 1998: Regulations.
Debt Collectors, 1998: Regulations.

JUSTICE BUDGET VOTE DEBATE
Inputs from Department of Justice and Organs of State involved in the Administration of Justice:
i Minister of Justice.
ii Deputy Minister of Justice.
iii Director-General.
iv Deputy-Director General: Implementation of Legislation.
v NCPS.
Judiciary.
vii Judicial Service Commission.viii
ix Magistracy.
Magistrates Commission. vi
National Director of Public Prosecutions.
Legal Aid Board.
Human Rights Commission.
Public Protector.xi
Gender Equality Commission.
xii Special Investigation Unit.
xiii Justice College xiv.
Rules Board