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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
6 November 2003
PREVENTION OF CORRUPT ACTIVITIES BILL: DELIBERATIONS
Documents handed out:
Prevention of Corrupt Activities Bill (Working Document No. 8)
The Committee continued with deliberations on Working Document No 8 of the Bill. It was noted that in Clause 27(5) the suspect cannot refuse to disclose the source of his property and that this is deliberate so as to forestall a situation where such non-disclosure of material information would defeat the ends of justice. Clause 27(6) ensures that investigations are conducted in a civilised manner.
The suggestion that the subject should be allowed an opportunity to review a degree nisi was rejected as such a review would stall the momentum of the investigation. The choice of a magistrate over a judge to handle such sensitive and serious investigations was queried. It was explained that the reason for designating a magistrate was based on considerations of accessibility.
The Chair reminded the Committee that it had less than one week to work on the Bill. He noted that every effort would be made to finalise the Bill but that should there be some outstanding issues then deliberations would be carried to 2004.
Chapter 5 Investigations regarding possession of property relating to corrupt activities
The Chair remarked that this part is rather complicated due to the nature of the investigations that have to be undertaken. He noted that the chapter has been substantially redrafted.
Clause 26 Investigation regarding property relating to corrupt activities
The Chair observed that the drafter had made an addition to Clause 26(1) to supply clarity. He advised the drafter to replace 'civil' with a reference to the asset forfeiture unit in 26(1). He noted that the rest of the section is substantially covered in the Anti-Terrorism Bill.
Clause 27 Application for, and issuing of investigating direction in respect of possession of property relating to corrupt activities
The Chair observed that this clause had initially been problematic but that with the changes that have been effected, it appears to be fine. He noted that the clause includes 'a basis for believing...' in 27(2)(d) and 'to indicate whether any previous application has been made for the issuance of an investigation direction.... in 27(2)(e) which sets a very stringent test and rightly so. He asked the drafter to remove 27(3)(b)(ii)(ccc) which he said does not add value in the grounds that have already been set. He further suggested that 27(3)(a) should be made through an ex-parte application for a degree nisi in order to afford the suspect an opportunity to seek the court's audience.
The Chair referred to 27(5)(a) and asked what happens when someone lies or refuse to answer to summons.
Adv Gerhard Nel, the drafter, explained that under 27(5)(a) the suspect cannot refuse to disclose the source of his property and that this is deliberate so as to forestall a situation where such non-disclosure of material information would defeat the ends of justice.
The Chair asked the drafter to justify the need for 27(8) in view of the proceeding provisions.
Adv Nel said that 27(8) envisages situations where one would encounter jurisdiction problems but agreed that it is no longer relevant and should fall away.
The Chair suggested that it be moved to Clause 3 where it would serve a useful purpose.
Adv Nel agreed to move the subclause to Clause 3 and make it 3(c)
Mr. Jeffery (ANC) suggested changes to the headings of Clauses 26, 27 and 28 in order to succinctly capture the underlying provisions. The Chair agreed and requested the drafter to make the changes.
Mr. Jeffrey suggested that there should be a provision to afford the accused an opportunity to review the degree nisi or seek an extension of a stay order.
The Chair said that granting a review would be problematic as one would not like the momentum of the investigation to be stalled. He noted that the accused would be afforded an opportunity to state his/her case in court. He however agreed with the suggestion for an extension noting that the accused would need an opportunity to stay the process if so desired.
Mr. Vezi (IFP) asked if the summons referred to in Clause 27 was of a civil or criminal nature.
The Chair explained that the summons was within the rubric of the criminal justice system.
Adv. Masutha asked if the main purpose of 27(6) was to establish overall whether the subject has been given reasonable grounds for this invasion of privacy.
The Chair confirmed this and added that sufficient grounds would have to be placed before the court, which is why the test has been set deliberately very high. He asked the drafter to change 'sufficient' in 27(3)(b) to 'prima facie'.
Adv. Masutha asked if provision had been made to ensure that the investigations are conducted in a civilised manner.
The Chair replied that such matters are adequately addressed in 27(6). He noted that provision is made for day-time operations, no kicking of doors and one must explain the reason for the invasion.
Mr. Jeffrey queried why a magistrate has been tasked to adjudicate over such sensitive and very serious investigations. He said that it would have been better to entrust this weighty responsibility to a judge. The Chair agreed that a judge would be better placed to handle such sensitive matters. He explained that the reason for designating a magistrate was based on considerations of accessibility.
Chapter 6 Central Corruption Register
The Chair asked the drafter to change the title so as to read 'Register Relating to Tender Default'
Clause 29 Designation of Registrar
The Chair asked the drafter to replace 'Director General' with 'Minister of Finance' He added that Chapter 5 should become 3, Chapter 3 would change to 4 and Chapter 4 would become 5.
Mr. Jeffrey wondered why all these chapters should not be lumped together instead of treating them separately.
The Chair explained that the sections in question cannot be lumped together as one part deals with executive matters whilst the other covers judicial matters.
Clause 31 Access to register
He asked the drafter draft a subclause on access to the register in order to make adequate provision for members of the public to access this facility. He noted that the whole idea is to place a duty on members of the public to familiarise themselves with the tender processes so as not to make excuses when found to be in the wrong.
Chapter 7 Miscellaneous matters
Clause 33 Duty to report corrupt transactions
Ms Camerer (DA) made the point that the duty to report would be problematic unless one is made aware of this responsibility.
The Chair said the law should be that 'any person who knows or has reason to suspect'. He asked the drafter to tighten up the provision with regard to 'knows' and 'suspicious' in order to supply the necessary clarity.
Ms Camerer said that it would be pointless to ask people to sit and wait for an offence to be committed before they file a report with the authorities. The Chair agreed and asked the drafter to remove 'intending' from Clause 33(b). He added that it is important to set a ceiling that would principally aim at senior management in order to avoid a floodgate of minor reports, which would create administration problems.
The Chair asked the drafter to take out the provision 'for 30 days' in 33(3)(d). He then requested that the entire subclause 33(3) be taken out and condense the consequences of the duty under 33(2). He also asked the drafter to the change the date of commencement.
Clause 34 Extraterritorial jurisdiction
The Chair asked the drafter to replace 'foreigner' with 'person other than a person who is not mentioned in subclause (1)'.
Old clause Clause 29 [Reinstatement of common law crime of bribery
The Chair said that 'Reinstatement' would be dealt with once the provisions on offences have been finalised.
Clause 35 Repeal and amendment of laws, and savings
The Chair noted that these are transitional measures but asked the drafter to add the phrase 'instituted and continued' and say something about investigations in 35(3). In 35(4) he asked the drafter to add: 'prosecution or any criminal or legal proceedings'. He referred to the various pieces of legislation listed in the Schedule and made the point that the Committee would not add anything to them but would instead leave the task of effecting the necessary amendments to the respective Portfolio Committees. As for Act 105 of 1997 the Chair asked the drafter to ensure that the amendments are tabled in Parliament before the issuance of the Gazette Notice. He remarked that he was not absolutely sure that all possible offences have been covered but expressed satisfaction that this was a good start.
The Chair asked the drafter to clarify the fact that South Africa has adopted the SADC Protocol against Corruption.
Adv. Masutha said that the Preamble makes an important link to the Bill of Rights but that it does not follow through to capture the principal features in this regard.
The Chair encouraged Adv. Masutha to make whatever contribution he feels would strengthen this area. He asked the drafter to work on the Objects clause.
The meeting adjourned.