Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill & Treaties with Bangladesh; with Deputy Minister; Programme for filling Information Regulator vacancy

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Justice and Correctional Services

18 February 2020
Chairperson: Mr G Magwanishe (ANC)
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Meeting Summary

Extradition and Mutual Legal Assistance in criminal matters treaties

The Department spoke about the Extradition and Mutual Legal Assistance in Criminal Matters Treaties, established between South Africa and Bangladesh. The purpose of the treaties was to underscore that SA would not be a safe haven for criminals - by providing for the extradition of fugitives and to facilitate the effectiveness of law enforcement authorities in the prevention, investigation and prosecution of crime. The ratification of the treaties would assist the government’s Programme of Action and inspire public confidence in the criminal justice system to prevent crime and increase levels of safety. The President had, on 30 April 2019, authorised the Minister of Justice to sign the treaties on behalf of the government. The Minister then signed the treaties on 01 October 2019 in Dhaka, Bangladesh.

Members noted that Bangladesh imposed the death penalty – having carried it out in recent years – and asked the Department how the Extradition Treaty would prohibit the state from detaining people without trial, torturing them in any way or punishing them inhumanely. Could putting people on death row, for the rest of their natural life, not be considered inhumane? What is the Department’s view on this contradiction when negotiating treaties? Is this not in fundamental conflict with the basic principles of the Constitution? Why do the treaties allow retrospective applications and why is the dual criminality principle not a requirement for extradition? 

The Committee agreed to schedule a date to consider and adopt the report on the treaties.

The Department also presented the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill. The Bill originally started as the Criminal Procedure Amendment Bill. On 19 June 2007, the South Gauteng High Court declared certain parts of section 18 of the Criminal Procedure Act (CPA) unconstitutional. This was because it barred, in all circumstances, the right to institute a prosecution for all sexual offences, other than those listed in section 18(f), (h) and (i), after the lapse of a period of 20 years, from the time when the offence was committed. The ConCourt afforded Parliament 24 months to enact remedial legislation, i.e. before 14 June 2020.

Members asked who motivated the inclusion of the offences of bribery, corruption and torture into section 18 of the CPA. Did the NPA request the inclusion? Was there any motivation for this? Did the NPA submit any comments received from the public? If so, what were they?

The Chairperson indicated that his office received a letter from the House Speaker. She was seeking advice on the letter she had received from the Public Protector concerning the conditions of the employment of the Deputy Public Protector (DPP). Both letters would be circulated to all the Members on the next day for their input, in order for the advice communicated to the Speaker to be a consolidated response of the entire Committee.

The Committee support staff indicated that a letter dated 04 November 2019 had been received from the President, informing the Assembly of the resignation of Professor Tana Pistorius as a part-time member of the Information Regulator. It also requested the National Assembly to start the process of filling the vacancy created by the resignation, in terms of section 41(2) of the Protection of Personal Information Act (2013). As a way forward, it was recommended that the Committee should adopt a similar process to that which was followed in the case of the DPP. Additionally, a decision must be taken on whether the position should be filled for the remainder of the five-year term or the new appointment should be a full five years. It was suggested that the Committee should request the Speaker’s Office to engage the IR to ascertain its views on this matter, as part of the process of establishing an appropriate recommendation.

A draft programme for the appointment of a part-time member of the IR was then presented by the Committee secretariat and considered by the Members.

One Member reckoned that the Committee should be concerned by the performance of the IR hitherto the vacancy. The establishment had not been productive in executing its mandate – it had been a disappointment. Prof Pistorius may have resigned due to personal reasons but it may be necessary for the Committee to investigate and ascertain her exact reasons.  

The Committee agreed that appointment would be for a full five-year term instead of time left remaining for the departing Regulator.

The draft programme was adopted by the Members subject to finalising its tentative dates.

Meeting report

Briefing on the Extradition and Mutual Legal Assistance in Criminal Matters Treaties between South Africa and Bangladesh
Mr Herman van Heerden, Principal State Law Advisor, Department of Justice and Constitutional Development, explained that the purpose of the treaties was to underscore that South Africa (SA) would not be a safe haven for criminals - by providing for the extradition of fugitives and to facilitate the effectiveness of law enforcement authorities in the prevention, investigation and prosecution of crime. The ratification of the treaties would assist the government’s Programme of Action and inspire public confidence in the criminal justice system to prevent crime and increase levels of safety.
 
During 2017, the Department provided the Bangladeshi authorities with draft treaties for their consideration and comments. Various consultations with the Bangladesh High Commission (BHC) in Pretoria took place. On 26 February 2019, the BHC indicated that their authorities had agreed with the contents of the two treaties. The treaties were submitted to the State Law Advisers in the Department as well as the Department of International Relations and Cooperation. The Advisors had since indicated that the treaties were compatible with South Africa’s domestic law and international obligations, respectively. On 30 April 2019, the President authorised the Minister of Justice to sign the treaties on behalf of the government. The Minister then signed the treaties on 01 October 2019 in Dhaka, Bangladesh.

Mr van Heerden then outlined the details of the treaties, respectively, including the 23 articles within each treaty. He also explained the fundamental differences between the two treaties.

Discussion
Adv H Mohamed (ANC) noted the conditions for discretionary refusal of extradition listed under article four of the Extradition Treaty; he asked if treaties generally came with regulations, given that the procedures were extensively outlined within the articles. Article four also mentioned that the probable penalty that may be imposed was in conflict with fundamental principles of the laws of the requested state. Will these principles be listed? How are the probables determined?

Adv Mohamed also asked about article 12, on provisional arrests. How was the 60-day provisional arrest chosen? Do provisional arrests not imply urgency?

Ms N Maseko-Jele (ANC) thanked the Department for the presentation. She asked about article 14, which provided conditions for requested states in surrendering culprits. Is there a reason for not specifying the exact period within which they should process the surrender?

Ms W Newhoudt-Druchen (ANC) asked what brought up the creation of the treaties between SA and Bangladesh. What normally happens in the background leading up to a treaty being established between countries? In this particular case, was it because South Africa (SA) has prisoners from Bangladesh?

Adv G Breytenbach (DA) recognised that Bangladesh was run by a Parliament but its dispensation was to also impose the death penalty – having carried it out in recent years. Article four allowed SA to refuse to extradite convicts unless assurances were given by the requesting state that the penalty would not be carried out. The Department should elaborate on how the Extradition Treaty would prohibit the state from detaining people without trial, torturing them in any way or punishing them inhumanely. Could putting people on death row, for the rest of their natural life, not be considered inhumane? What is the Department’s view on this contradiction when negotiating treaties? Is this not in fundamental conflict with the basic principles of the Constitution?

Adv Breytenbach also asked why the treaty allowed retrospective applications and why the dual criminality principle was not a requirement for extradition.  Why was the principle not included in this instance?

Mr van Heerden explained that the Department was sometimes reluctant to execute requests for provisional arrests, specifically from countries where there would likely be problems even with valid extradition requests. In some instances, the 60-day period would be deemed short for processing requests and would subsequently be extended up to 90 days; the delay would be caused by not timeously receiving requests that complied with domestic law. The period also depended on factors such as the languages involved, time zone differences, etc. The 60 days were also included in the European convention on extradition, thus being widely regarded as a reasonable period. In the Southern African Development Community (SADC) protocol it was listed as 40 days.

Mr van Heerden clarified why the surrendering period was not specified. In terms of the section five of the Extradition Act (Act 67 of 1962), as soon as the Department received a request for extradition, the Minister must be notified. The Minister would then transfer the matter to the National Prosecuting Authority (NPA) and the International Criminal Police Organisation (Interpol) – who would arrest the person and institute an extradition inquiry to determine whether the person was extraditable. The Minister, upon being notified, would then have to sign an order of surrender and submit it to the relevant bodies, which would interface with their counterparts in the requesting state to make arrangements for the extradition. The period within which these processes would be finalised was usually uncertain, hence an unspecified period.

The Extradition Treaty was established because there was a huge Bangladeshi community in SA and it reportedly consisted of individuals who were involved in criminal activity. Following some consultations with the Bangladesh High Commission, the need was identified to form a mechanism that would assist both countries in efficiently extraditing criminals. The Minister was also informed that there already were four criminals who had escaped from Bangladesh to SA. This brought further cause for the treaties.

In a 2012 case, Constitutional Court (ConCourt) said that the Department could not extradite, deport nor return a convict to his country of origin without sufficient undertaking of the case. This was because the consequences inflicted on the convict in the requesting state could potentially compromise international relations. To avoid this, SA’s missions abroad would also be asked to monitor the legal proceedings involving criminals extradited from SA. The Department would typically request assurance that the death penalty would not be carried out nor imposed on the criminals, before extraditing them.

Dual criminality was not a requirement in the Mutual Legal Assistance Treaty because there would also be requests from countries with completely different legal systems. The Department’s grounds for refusal would still make provision to assess what may be considered a crime in the requesting state, against the basic principles of the Constitution of SA.

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, added that frequent interactions between countries on state affairs would increasingly necessitate a treaty. For example, there may be Bangladeshi criminals who fled their country and came to SA, who would be requested by their government; there may also be those who committed crimes during their stay in SA and went back to Bangladesh, who would be extradited by SA. The death penalty matter had been extensively ventilated in the ConCourt for cases involving Botswana and the United States of America; there was wide acceptance of the undertaking. Extraditions were done to death penalty countries like Swaziland, Lesotho and Zimbabwe – none of them had executed criminals in recent times. An existing problem was how to handle the criminals that were not expedited. SA did not have extra territorial jurisdiction except for crimes like terrorism; extradition was in SA’s best interests because criminals would then be tried in the countries they committed the crime.

The Chairperson indicated that the Committee would schedule a date for the deliberations and the adoption of the report in order to efficiently process these matters. He thanked the Department for the presentation.

Briefing on Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill
Mr Henk du Preez, Senior Legal Adviser, Department of Justice and Constitutional Development, said that the Bill originally started as the Criminal Procedure Amendment Bill. On 19 June 2007, the South Gauteng High Court declared certain parts of section 18 of the Criminal Procedure Act (CPA) unconstitutional. This was because it barred, in all circumstances, the right to institute a prosecution for all sexual offences, other than those listed in section 18(f), (h) and (i), after the lapse of a period of 20 years, from the time when the offence was committed. The ConCourt afforded Parliament 24 months to enact remedial legislation, i.e. before 14 June 2020.

The Criminal Procedure Amendment Bill (2018) was introduced into Parliament on 30 May 2018 before the ConCourt delivered its judgement. The Department briefed the Committee on the Bill, which did not invite interested parties to comment on the Bill. On 16 January 2019, the Minister informed the Speaker that the applicants in the Nicole Levenstein matter had decided to challenge the constitutional validity of section 12(4) of the Prescription Act (Act 68 of 1969), on the same grounds as those raised in respect of section 18 of the CPA. The Speaker was also informed that the Criminal Procedure Amendment Bill would be withdrawn from Parliament and that a single Amendment Bill would be prepared – dealing with the proposed amendments to section 18 of the CPA and section 12 of the Prescription Act.

The Department of Planning, Monitoring and Evaluation (DPME) had since exempted the Department from submitting the socio-economic impact assessment study (SEIAS) report concerning the Bill. For the Prescription Act (1969), the Department received comments from institutions such as the Centre for Child Law, Centre for Applied Legal Studies, Women’s Legal Centre and Ian Levitt Attorneys, i.a. For the CPA, it received comments from the South African Police Services (SAPS), Legal Resources Centre and the Commission for Gender Equality, i.a.

Mr du Preez then outlined the key changes made to the Act, as stipulated in the Amendment Bill.

Discussion
The Chairperson asked the Department to explain the retrospectivity of the Bill, to 27 April 1994, in simpler terms.

Mr Du Preez said it would be difficult to explain this. He requested to answer the question in more detail on the basis of the public comments on the matter. In short, the ConCourt had indicated that when the provision was declared unconstitutional, it backdated to the date on which the final Constitution came into effect. In this case, the court backdated it to the date when the interim Constitution was in effect.

Deputy Minister Jeffery explained that the Sydney Lewis Frankel case was prescribed for women who had been molested as children but had not brought up the case. In applying to the ConCourt for the prescription to be lifted, the matter also needed to be backdated; hence the retrospectivity provision.

Ms Newhoudt-Druchen asked the Deputy Minister to clarify how the case was only coming forth now because the Law provided for backdating of only up to 20 years, but this case was over 20 years ago.

Mr du Preez replied that when the Levenstein matter was decided by the ConCourt, section 18 of the CPA at that stage determined that for offences such as rape and compelled rape, the right to institute a prosecution should never prescribe – irrespective of how long ago the offence was committed. The ConCourt then ruled that the Levenstein case was an unjust distinction being drawn between rape, compelled rape and other sexual offences. The ConCourt read in certain words into that section, referring to all sexual offences, in terms of the Common Law or a statute. From the date of the ConCourt’s judgement the section18 now read that for all sexual offences, the right to institute a prosecution would not prescribe after a period of 20 years had lapsed since the alleged commission of the sexual offence.

When Parliament consulted with the advocate that presented the case on behalf of the Minister in the ConCourt, it was at lengths in explaining to the advocate that an election year had a major impact on the time it took to process legislation. The advocate did get to address the court on this factor because Parliament was then given an extended period of 24 months to enact the remedial legislation. This period was due to lapse by June 2020.

The Chairperson responded that the Committee was well aware of the June 2020 deadline, and therefore wanted to promptly process the Bill so that the National Council of Provinces (NCOP) would have enough time to process it too and meet the deadline. Otherwise, the Bill would end up not being passed into Law.

Adv Breytenbach asked who motivated the inclusion of the offences of bribery, corruption and torture into section 18 of the CPA. Did the NPA request the inclusion? Was there any motivation for this? Did the NPA submit any comments received from the public? If so, what were they?

Ms Maseko-Jele expressed concern that the retrospectivity of the Amendment Act would impose a bigger workload on the Department. Is the Department ready for the influx of cases?

Mr du Preez indicated that the Department would not amend the prescripts dealing with torture – this offence would remain in section 18 of the CPA. The section had a retrospective operation and this meant that the NPA may institute a prosecution, irrespective of the date of the crime. The Cabinet Committee and the Director-General’s cluster requested the Department to insert these provisions into the section 18; they were then listed under subsection (eA), under subparagraphs (i), (ii) and (iii).

Deputy Minister Jeffery explained that retrospectivity only applied to sexual offences. Rape and compelled rape were never subject to prescription. It was hard to project the amount of cases that the Department would receive but this would then be for the NPA and the SAPS to deal with. The Department would put more resources in place to ensure that the investigations would be done.

The Chairperson thanked the Deputy Minister and the Department for the presentation.

Communication from Public Protector
The Chairperson indicated that his office received a letter from the House Speaker. She was seeking advice on the letter she received from the Public Protector concerning the conditions of the employment of the Deputy Public Protector (DPP). Both letters would be circulated to all the Members the following day for their input, in order for the advice communicated to the Speaker to be a consolidated response of the entire Committee.

Briefing on the draft programme for the filling of the vacancy in the Information Regulator
Ms Christine Silkstone, Committee Content Advisor, indicated that her presentation would be about the vacancy at the Information Regulator (IR). A letter dated 04 November 2019 had been received from the President, informing the Assembly of the resignation of Professor Tana Pistorius as a part-time member of the Information Regulator. It also requested the National Assembly to start the process of filling the vacancy created by the resignation, in terms of section 41(2) of the Protection of Personal Information Act (2013). Her fields of specialisation included Intellectual Property Law and Information Technology Law. She had already served about three and a half years of her term. At present, the Regulator had five members, who were appointed with effect from 01 December 2016, for a period of five years. This included a chairperson, two full-time and two part-time members – with one of the part-time posts now being vacant since Prof Pistorius’ resignation.

As a way forward, it was recommended that the Committee should adopt a similar process to that which was followed in the case of the DPP. As a first step, the position should be advertised, with the requirements and criteria for the vacancy being clearly specified. It was deemed prudent to roll out adverts in the new year. Additionally, a decision must be taken on whether the position should be filled for the remainder of the five-year term or the new appointment should be a full five years. It was suggested that the Committee should request the Speaker’s Office to engage the IR to ascertain its views on this matter, as part of the process of establishing an appropriate recommendation.

Mr Siyabamkela Mthonjeni, Committee Secretary, outlined the Committee’s draft programme for the appointment of a part-time member of the IR. This included dates on which candidates would be contacted and requested to fill in the questionnaire; the uploading the list of names of candidates and attaching their CV’s on the parliamentary website for public comment; releasing media statements to invite submissions; shortlisting candidates; screening the shortlisted candidates; conducting the interviews; Committee deliberations and reporting the recommendations to the House. The Secretariat had already published adverts on various platforms, released a formal media statement and placed the advert on the parliamentary website.

Discussion
The Chairperson explained that it would be difficult to screen the shortlisted candidates on 20 March 2020 as some of the Members normally convened for subcommittee meetings on Fridays.

Adv Breytenbach said that the Committee should be concerned with the performance of the IR hitherto the vacancy. The entity had not been productive in executing its mandate – it had been a disappointment. Prof Pistorius may have resigned due to personal reasons but it may be necessary for the Committee to investigate and ascertain her exact reasons. Appointing a new candidate into a dysfunctional setting would be counterproductive and a waste of the public purse.

Ms J Mofokeng (ANC) indicated that she attended the IR stakeholder engagement which was held   in January 2020 and it was pleasing that progress had been made towards the filling of the vacancy.

Ms Mofokeng proposed that the appointment process of an interim candidate should be reviewed. In a hypothetical case where an individual resigned shortly before the end of their term, it was unjust to expect the new candidate to adjust and fully integrate into the IR in the little time they had left. The appointee should be given a full five year term.

Mr G Dyantyi (ANC) echoed the importance of the performance issue that was raised by Adv Breytenbach but asked the Members to separate that subject matter from the interview process because it did not fit the context. As resolved in the Committee’s strategic planning meetings, all institutions serving under the Department would be summoned to Parliament to present their performance reports, quarterly and annually.

Mr Dyantyi said that exit interviews were the most suitable platform to ascertain reasons for resignations. The imminent vacancy interview processes for IR would not be hindered by responses from the exit interview.

The Committee sent an important message to the Department in the way it handled its process for the DPP vacancy – an exemplary and precise manner of starting and finishing adverts and interviews. This process was concluded on schedule, within three months. By extending this period to about five months for the IR case, the Committee would be regressing. There should be a set deadline, even if tentative, for the conclusion of the interviews; this would motivate the Committee to work efficiently and prioritise other programmes accordingly.

The Chairperson reckoned that the Committee should resolve on whether the appointment would be for the remainder of the term or a full five-year term. The proposal to make the appointment for five years was in consideration of the cost implications in filling the vacancies. It would not make sense to appoint a candidate for only 18 months.

The Chairperson also indicated that Prof Pistorius had cited personal reasons for her resignation. An exit interview would still be conducted to potentially ascertain further information, even about the state of the organisation in general. The IR would also be scheduled to report to Parliament after the first quarter.

There was going to be a recess period for Members to focus on their constituencies in between the processes of filling the vacancy; this was why the processes would be extended to about five months. Fridays were also strictly reserved for subcommittee meetings.

Members supported the proposal to recommend a five-year term for the new appointee. The Committee also supported its programme, subject to cleaning up the dates and finalising tentative dates.

Mr Mthonjeni clarified that some of the dates listed in the draft programme referred to the days on which the secretariat would be doing background work that would not necessarily involve the Committee. For instance, the screening of the shortlisted candidates, on Friday 20 March 2020 was the date on which the information would be sent to a screening agency.

Ms Mofokeng moved for the adoption of the programme and Mr Dyantyi seconded the motion.

The Chairperson thanked the Members for attending the meeting.

The meeting was adjourned.

 

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