Criminal Procedure Amendment Bill: briefing by Ministry of Justice; Removal of Magistrate from office

Meeting report

The Chairperson convened the virtual meeting of the Committee and welcomed Members in attendance, as well as the delegation from the Department of Justice and Constitutional Development consisting of Ms Kalay Pillay, Deputy Director-General: Legislative Development), Adv Henk du Preez, State Law Advisor, and Mr Mfuzo Zenzile, Parliamentary Liaison Officer.  

She thanked Members for attending the meeting after a very intensive constituency period during Parliament’s recess. She noted the apology from the Deputy Minister of Justice and Constitutional Development who had Cabinet-related commitments to attend to.

The purpose of the meeting was for the Committee to be briefed by the Ministry of Justice and Correctional Services on the Criminal Procedure Amendment Bill [B12-2021 (section 75)], and for the Committee to consider and adopt its report on the removal from office of Ms J van Schalkwyk (Chief Magistrate of Kempton Park) in terms of section 13(4)(b) of the Magistrates Act 90 of 1993. The last agenda item was for the Committee to consider and adopt its outstanding minutes.

Briefing on the Criminal Procedure Amendment Bill [B12-2021]
The Chairperson noted that the Criminal Procedure Amendment Bill was passed by the National Assembly (the NA) and is now before the National Council of Provinces (the NCOP) for consideration as it is an Amendment Bill in terms of section 75 of the Constitution. The Criminal Procedure Amendment Bill amends section 154(3) of the Criminal Procedure Act 51 of 1997 which had been declared constitutionally invalid on 4 December 2019 by the Constitutional Court. In this regard, the Constitutional Court held that the impugned section was inconsistent with the Constitution to the extent that it did not protect the identity of victims in legal proceedings, and that it does not provide ongoing protection for children under the age of 18. Subsequently, Parliament was given 24 months to enact legislation to remedy this constitutional defect, and this period ends on 04 December 2021.

Ms Kalay Pillay, DDG: Legislative Development, thanked Members and introduced the delegation from the Department of Justice and Constitutional Development.

Briefing on the provisions of the Criminal Procedure Amendment Bill
Mr Dingaan Mangena, State Law Adviser, presented the briefing to the Committee. He appreciated the introductory comments of the Chairperson and confirmed that the Criminal Procedure Amendment Bill was passed by the NA and is now before the NCOP.

The Criminal Procedure Amendment Bill amends section 154(3) of the Criminal Procedure Act which had been declared constitutionally invalid on 4 December 2019 by the Constitutional Court in the case of Centre for Child Law & Others v Media 24 Ltd & Others [2019] ZACC 46 (4 December 2019).

In this matter, the Constitutional Court confirmed the decision of the Supreme Court of Appeal and declared section 154(3) of the Criminal Procedure Act constitutionally invalid for failing to protect the identity of victims of crime in criminal proceedings and for failing to provide ongoing protection of anonymity to actual witnesses and victims. The declaration of constitutional invalidity was suspended for 24 months to give Parliament an opportunity to remedy the impugned section that gave rise to constitutional invalidity, and this period ends on 04 December 2021.

The impugned provision offers anonymity to be afforded regarding the identity of a child accused or a witness or a victim unless a court authorised the publication providing ongoing protection to child accused and witnesses once they reach 18 years, unless the court authorises otherwise where it is equitable and just to do so. This protection prevents the publication of any information that discloses the identity of victims and witnesses. Victims are not covered by this protection, as the provision does not extend protection into other groups for child accused witnesses and victims.

In the matter before the Constitutional Court, it was held that this provision is unconstitutional for arbitrarily differentiating between classes of children and thus giving rise to a breach of the right to equality. The Constitutional Court held that by excluding child victims from the provision’s protection limits their rights to equality, privacy, and dignity, and that it is not in keeping with the constitutional and legal principle of the acting in the best interests of the child.

Clause no. 1 of the Criminal Procedure Amendment Bill seeks to amend section 154(3) of the Criminal Procedure Act to prohibit the publication of any information which reveals or may reveal the identity of an accused or a witness, or of a person who is or was under the age of 18 years at the time of the alleged commission of the offense, unless the publication of such information is authorised by a court under section 154(3). This allows for a judicial officer or presiding judge to authorise the publication of any information relating to the proceedings as he or she may do it if such a publication would, in his or her opinion, be just and equitable and in the interest of any particular person. In addition, there is a departure from the general rule on anonymity that allows a police official, or any other person authorised by the National Commissioner of the South African Police Services (the SAPS) to, in certain circumstances, publish information which may reveal the identity of an accused. The circumstances listed in the proposed amendment must be present in respect of every category of discovery in criminal proceedings before the information readily revealing the identity may be published by the SAPS or a relevant authorised person.

The Constitutional Court also held that an accused witness or person against whom an offence had allegedly been committed that is under the age of majority at the time of the commission of the offense, does not forfeit the protection of section 154 when they reach the age of 18 years. The amendments provide that the protection afforded is ongoing unless the court authorises the publication of the information of a child.

A person may consent to the publication of their identity after reaching 18 years of age or if consent is refused - then the identity may be published at the discretion of a competent court. However, consent is not the sole criterion for the publication of such information, and the amendments require the court to be satisfied that the person against whom an offense has been committed understand the nature and effect of the order authorising publication of their identity.

Factors are also listed that must be considered by the court such as the nature of the charges, the age of the person involved, the interests of the public, and the hardship the person may suffer as a result of publication, amongst other factors. A court may, if it deems it necessary in the interests of justice, hold an inquiry to determine whether in order for publication of information which may reveal the identity of the person should be granted. Such an inquiry must take place behind closed doors. The disclosure of information relating to such an inquiry is prohibited unless the court permits such disclosure. The verdict of the inquiry must be delivered in an open court subject to the limits set by the court which will be based on the circumstances of the matter.

Submissions received on the Criminal Procedure Amendment Bill
Regarding these proposed amendments, the public was invited to present their comments and submissions relating to the Criminal Procedure Amendment Bill. The invitation for public comment was posted on the websites of government and Parliament. The Centre for Child Law presented its submissions to the effect that the proposed amendments to section 154 of the Criminal Procedure Act might be construed by the public and some members of the media to refer simply to traditional forms of media propagation. To provide clarity and to minimise misinterpretation and to avoid violations of rights of vulnerable groups that may arise, the commentator proposed that in addition to the prohibition relating to traditional form of media publications, such prohibition should be extended to include social media and other online platforms. The proposal was accepted by the Portfolio Committee on Justice and Correctional Services, and the words ‘including on any social media or electronic platform’ was included in the wording of the proposed amendment.

Another proposal was made that the person should be able to publish or reveal their own identity without needing a court order, and the Portfolio Committee on Justice and Correctional Services accepted the inclusion of the words “with open courts and where the court has granted an order that extends into other courts after 18 years”.

Discussion
The Chairperson thanked the delegation for the briefing presented to the Committee to give effect to the Constitutional Court’s ruling regarding the extension of protection to child victims and also the need for protection for adults in this regard. She invited Members to engage with the briefing.

No Members indicated that they have input or questions for the delegation.

The Chairperson then asked for clarity on the matter regarding the inclusion of the words “where the court is granted an order that extends into adulthood”. Does this phrasing still require a court application must be brought? She asked for clarification on whether the subsection should be amended to make it clear that a court application would not be required in instances where the victim was a publisher of their own identity during adulthood. Regarding accessibility, she indicated that where the Criminal Procedure Amendment Bill does provide for the High Court to be approached for authorisation of consent, this may have cost and accessibility implications for an ordinary person, especially rural communities. She asked for more clarity on the nature of such an application and whether there has been consideration to make it an administrative matter instead of a court hearing.

Mr T Dodovu (ANC, North West) asked for clarity on the time period for the Criminal Procedure Amendment Bill. He asked for the date on which the judgment was passed and when the period for remedying the invalid provision will end for Parliament to take action.

Ms M Bartlett (ANC, Northern Cape) asked for clarity on whether children would be protected.

Responses from the Department of Justice and Constitutional Development
Mr Mangena responded to the Chairperson’s question by saying that a court application would not be required in the sense of trying to make the process as user friendly as possible and to lessen the cumbersome effect of the provisions. Otherwise, the process would not be user friendly and as the result would be frustrating to really adhere to. An application would only be required in instances where the court has actually made an order that prohibits such publication. The issues regarding accessibility to the High Courts are valid. However, the High Court is the moral custodian of the minors and this matter deals with new status issues and the child’s interest.

He responded to Mr Dodovu’s question by stating that the Constitutional Court’s judgment was passed on 04 December 2019, and the period for Parliament to remedy the invalidity of the impugned provision ends on 04 December 2021.

Regarding Ms Bartlett’s question, he responded that it is a logistical question, and that the amended provisions seek to remedy the situation by extending protection to child victims.

The Chairperson appreciated the responses from the Department of Justice and Constitutional Development and noted that the Committee will continue engaging on this goal. The NCOP has advertised the Criminal Procedure Amendment Bill for public comment that will end on 12 November 2021, and responses from the Department of Justice and Constitutional Development to any submissions is scheduled to be the topic for the Committee’s next meeting on 17 November 2021.

Adoption of the Committee’s Report on the removal of the Chief Magistrate:

The next agenda item was for the Committee to consider and adopt the Committee Report on the removal from office of Ms J van Schalkwyk (Chief Magistrate of Kempton Park) in terms of section 13(4)(b) of the Magistrates Act 90 of 1993.

The Chairperson indicated that the Committee received a briefing on the matter on 08 September 2021 and received legal opinions on the matter. In the last meeting, the Committee also indicated its support for the removal of Ms J van Schalkwyk.

The Committee’s Report on this matter indicates the recommendation that the NCOP should not restore Ms JF Van Schalkwyk to the office of Magistrate.

The Committee’s Report was duly adopted.

Consideration and adoption of minutes

The last agenda item was for the Committee to consider and adopt two sets of outstanding minutes for its meetings held on 01 and 08 September 2021. Both sets of minutes were duly adopted.

The meeting was adjourned.