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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
19 November 2003
PREVENTION OF CORRUPT ACTIVITIES BILL: DELIBERATIONS
Prevention of Corrupt Activities Bill Working Document No. 9 (Nov 2003) [not available]
Prevention of Corrupt Activities Bill [B19-2002]
The Committee went through Working Document No. 9 of the Bill, clause by clause, and effected some technical amendments. The finalised version of the Bill will be passed on 24 November 2004 and debated in the House on 27 November 2003.
Mr J Jeffery (ANC) asked the department to find a way to strengthen the first part of the Preamble since to him the word "anew" is not really capturing the intention and the essence behind this Bill.
The Chair reminded Adv G Nel (Department of Justice: Legal Drafter) to make a reference to the UN Convention against Corruption in the Preamble and see whether he can incorporate some of its provisions into this part of the Bill before the Committee finalised it.
Adv Nel noted that as soon as he receives the Convention he would do so.
Chapter 1: Definitions and Interpretation
Clause 1: Definitions
Adv Nel pointed out that whenever the word "agency" is used in this Bill, it has a corresponding meaning as that of agent.
Adv Nel noted that now it is clear that the property referred to in the definition only relates to the latter part of the definition and not the former.
The Chair noted that a comma should be inserted after the word "person".
(xi) Judicial Officer
The Chair reminded Adv Nel to have a look at the relevancy of par (b) and reiterated that he is of the opinion that International Criminal Court judges do not fall within the South African jurisdiction.
Adv Nel said that he would have a look at the position of the International Criminal Court judges. However with regard to par (c) he drew the Committee's attention to the provisions of Section 23 of the Labour Relations Act. This section provides that:
"no person shall be qualified to be appointed President or judge of the Court unless s/he, amongst other things, is a judge of a High Court or qualified to be admitted as an advocate or attorney and has, for a cumulative period of at least ten years, practised as an advocate or an attorney or lectured in law at a university or by reason of his/her training and experience, has expertise in the fields of law and land matters relevant to the application of this Act and the law of the Republic.".
Therefore based on the qualifications provided in this Act, Adv Nel was of the opinion that to be appointed as the President or judge of Labour Court, a person need not necessarily be a judge and could thus be anyone as long s/he meets the criteria laid down in the Act. Further since there are many Acts dealing with arbitration and mediation, he felt that it would be proper if arbitration and mediation proceedings could be provided in one paragraph.
The Chair then proposed that the word "or" be inserted at the end of paragraph (o).
(xiii) Listed company
The Chair reminded the department to inserted a comma after the word "company".
(xiv) National Director
Adv Nel noted that the definition of a National Director is in line with the provisions of the Constitution.
(xvi) National Commissioner
Adv Nel noted that the definition of a National Commissioner is in line with the provisions of the Constitution.
(xviii) Person who is party to an employment relationship
Adv Nel noted that this definition is formulated wider so as to include both the employer and employee as parties to an employment relationship.
(xxi) Private sector
The Chair noted that the Committee had previously requested Adv Nel to consider whether it would not be necessary to provide a definition for the term "entity or entities"
Adv Nel acknowledged that but contended that such would not be necessary since this term is, by implication, already defined in that of "private sector".
The Chair proposed that the "or" in the second paragraphs (c) and (e) be substituted by "and".
(xxv) Public officer
The Chair proposed that "or" or "and" be inserted at the end of this definition before "sporting event".
Clause 2: Interpretation
Mr Jeffery noted that the manner in which subclause (4) has been redrafted is a bit better than before, however proposed that "act of" be deleted and simply be "an omission" since the latter is broader than an act of omission.
Chapter 2: Offences in respect of corrupt activities
Part 3: Offences in respect of corrupt activities relating to specific matters
Clause 10: Offences in respectâ€¦to employees receiving or offering unauthorised gratification
The Chair noted that the word "employee" in the heading should be substituted by the words "person who is party to an employment relationship". Noting that even though this clause deals with specific persons who are involved in an employment relationship, however its test for unlawfulness differs with other cases relating to specific matters. He therefore proposed that this clause should be retained as Part 3 and a new Part 4 be created for all other cases dealing with specific matters. Furthermore he proposed that the heading of Part 3 should emphasise the undueness of the gratification while the heading of the clause should emphasise the corruptness of the activity of a person within employment relationship.
Adv Nel noted that the first reference to "person" in par (b) would be deleted.
The Chair also proposed that "within the scope of his/her/its employment relationship" be inserted after "powers, duties or functions" and before "is guilty of the offence".
Adv Nel proposed that the offence should be substituted by "is guilty of the offence of receiving or offering an unauthorised gratification".
Clause 11: Offences inâ€¦to witnesses and evidential material during certain proceedings
Adv Nel said that this clause should remain part of the new Part 4 since it does not only deal with witnesses, as specific persons, but also with confidential matters, which fall under specific matters.
Clause 12: Offences in respect of corrupt activitiesâ€¦to procuring and withdrawal of tenders
The Chair reminded the department to insert an "or" at the end of subpar (iii) of subclause (1)(a).
Clause 15: Offences in respect of corrupt activities relating to sporting events
Mr Jeffery proposed that the word "conduct" in par (b)(i) be substituted with "act" since the latter, in terms of Clause 2(4), is said to include omission.
The Chair agreed and asked the drafter to refine this paragraph accordingly.
Part 4: Miscellaneous offences relating to unacceptable conduct
The Chair noted that since Clause 17 deals with the possibility of a conflict of interest then the phrase "possible conflict of interest and other" should be inserted into the heading of Part 4 after "relating to" and before "unacceptable conduct".
Chapter 3: Matters relating to the offences
Clause 21A: Accused person may not be charged on same facts and circumstances
Adv Nel noted that this clause is unnecessary since its provisions are covered under Section 336 of the Criminal Procedure Act which states:
"where an act or omission constitute an offence under two or more statutory provisions or is an offence against a statutory provision and the common law, the person guilty of such act or omission shall, unless the contrary intention appears, be liable to be prosecuted and punished under either statutory provision or, as the case may be, under the statutory provision or the common law, but shall not be liable to more than one punishment for the act or omission constituting an offence."
He further noted that Section 106 in the same Act, especially paragraphs (c) and (d), it provides that when an accused pleads to a charge, the accused may plead that he has already been convicted or acquitted of the offence for which he is charged. This provision also forms part of the constitutional right to a fair trial as in Section 35(3)(m) where it states that a person has a right not to be tried for an offence in respect of an act or omission for which s/he has previously been either acquitted or convicted.
The Chair proposed that since the Committee is not going to resolve this issue in this meeting, it should instead mandate Adv Nel to draft a resolution on its behalf. That resolution should clearly state the position of the Committee and request the Department to research the matter, within three months, and then report back to Parliament.
Chapter 4: Presumptions and defences
Clause 24: Presumption
The Chair reminded the department to insert a comma after "subparagraph (i) or (ii)" in subclause (1)(b)(iii) and before the words "if the State".
Adv Nel noted that the department would also insert "or" at the end of par (b) in subclause (2).
The Chair asked Adv Nel to effect these proposed technical amendments, do the cross referencing and write the resolution for Clause 21A in readiness for it being passed by the Committee on 24 November.
The meeting was adjourned.