Transfer of Convicted Prisoners Draft Bill; Special Petitions: discussion

Meeting report

PRIVATE MEMBERS' LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS
7 June 2000
TRANSFER OF CONVICTED PRISONERS BILL, DISCUSSION ON SPECIAL PETITIONS & PETITION OF MR P L YOUNG

Documents Handed Out:
Transfer of Convicted Prisoners Draft Bill (See Appendix 1)

Chairperson: Mr P Hendrickse (ANC)

SUMMARY
Adv Schmidt of the Democratic Party introduced the Transfer of Convicted Prisoners Bill to the committee. The intention of the Bill is to provide for the transfer of foreign convicted prisoners in South Africa to their country of origin, to provide for the transfer of persons convicted outside South Africa to South Africa, and to provide for matters connected to such incidents.

The draft bill is in response to South Africans, convicted and imprisoned overseas, who have requested to be extradited to a South African prison for the remainder of their sentence. It will provide for a legal framework by which an exchange of prisoners can occur. At present, no such legal framework exists in South Africa. Most Commonwealth countries adhere to similar legislation under the Commonwealth Scheme for Convicted Prisoners, which requests all member states to make the transfer of prisoners applicable.

The draft Bill is expected to be submitted to the appropriate committees for review.

The committee also discussed the granting of special petitions. Petitions can be granted for two reasons. First, to right a wrong that occurred in the past, and secondly, to compensate for an individual's sacrifice or contribution to South Africa. Currently, no criteria are in place to guide decisions on which petitions should be approved. The committee debated whether the public should be made aware of their right to special pensions. The argument was put forth that if citizens knew of their right to apply, it would open the "floodgates" on petitions coming before the committee and thus financially unfeasible for the government. It was eventually decided that the public did have the right to know, but that strict procedural guidelines and criteria would have to be established on which petitions would be judged.

MINUTES
Transfer of Convicted Prisoners Draft Bill
Adv Schmidt (DP) introduced the transfer of Convicted Prisoners Draft Bill in terms of section 73(2) read with section 76(1) of the Constitution. The intention of the Bill is to provide for the transfer of convicted prisoners convicted in South Africa to their country of origin, to provide for the transfer of persons convicted outside South Africa to South Africa, and to provide for matters connected to such incidents.

Adv Schmidt identified the difference between foreign convicted prisoners and convicted prisoners. A foreign convicted prisoner refers to an individual who is a citizen of, or ordinarily resident in a specified country other than South Africa, and is convicted and sentenced in South Africa to an effective term of imprisonment or for an indeterminate period. A convicted prisoner means any person who is a citizen or permanent resident of South Africa, and is convicted and sentenced in a specified country to an effective term of imprisonment or for an indeterminate period.

Adv Schmidt stated the draft bill is in response to South Africans who have been convicted and imprisoned overseas, and whose family members, or themselves, have requested to be extradited to a South African prison for the remainder of their sentence. It is expected to provide a legal framework by which an exchange of prisoners can occur.

It was clearly outlined that the draft bill applied only to convicted prisoners, and not to individuals who were awaiting trial. It also retains that all decision making powers will fall under the role of the Commissioner of Correctional Services.

The draft bill outlines two specific procedures. In clause 4, it stipulates that where the authority agrees to the transfer of a prisoner to South Africa, it must submit to the Minister an application by the convicted prisoner, and a copy of the judgment relating to the prisoner. The Minister, in consultation with the Commissioner of Correctional Services, will determine whether to approve the transfer.

Clause 8 relates to foreign convicted prisoners. It stipulates when such a prisoner is convicted the presiding officer shall inform them of this clause, and if they wish to be transferred will complete the prescribed application forms. The Minister, in consultation with the Commissioner of Correctional Services, will determine whether to approve the transfer. If the application is granted, the Minister will submit the application and judgment to the specified country.

Discussion
The Chairperson asked what would be the purpose of such legislation. Adv Schmidt stated it would provide a framework by which family members could apply to have prisoners brought back to South Africa. At present, no legal framework exists in South Africa. Currently, most Commonwealth countries adhere to similar legislation under the Commonwealth Scheme for Convicted Prisoners, which requests all member states to make the transfer of prisoners applicable.

The Chair asked how this would facilitate bringing South Africans home. Adv Schmidt replied that a reciprocal agreement between the countries would first have to be established. Prisoners returning to South Africa would be subject to its parole board jurisdiction, and not that of the country in which they were convicted.

The Chair found this problematic since it would allow for prisoners' sentences to be reduced. Mr Meyer, State Law Advisor, stated that an international agreement may have to be constructed. However, Adv Schmidt felt that would not be necessary since this bill would reinforce the Commonwealth Scheme for Convicted Prisoners.

Sister Ncube (ANC) questioned the financial implications of housing South Africans presently imprisoned overseas. Adv Schmidt argued that the cost of keeping prisoners here was minimal compared to the total budget allocation for Correctional Services, and that the right of the prisoner to be visited by family had to be taken into consideration.

There was some concern over which crimes would be covered under the draft bill. Adv Schmidt stated the government would determine which transfers were reasonable. These crimes would then be established through regulations set up by the Minister, and passed by Parliament. Adv Schmidt recommended that the draft bill be sent to the committees on Foreign Affairs, Justice, and Correctional Services for review.

The Chair is expected to consult with the Speaker as to which are the appropriate committees.

Special Petitions
Ms A. Gattingh, Pensions Sub-Directorate of the Department of Finance, stated that the Department was currently looking at general provisions on establishing guidelines for special petitions. There are currently nine petitions before the Department. Ms Gattingh noted the Department was solely responsible for making recommendations on petitions of civil servants.

The Chair stated that granting of petitions was a constitutional issue, whereby every citizen had the right to petition for grants and Parliament was the body that made decisions regarding such petitions.

It was noted by a committee member that the focus of special petitions, under consideration by the Committee, were not specific to civil servants but to people whom had previously worked in the private sector. It was also made evident that those who would be petitioning for special grants would not be able to receive a pension from the Department of Welfare, and so this would provide a separate venue by which pensions could be granted. Members argued that this would be opening the "floodgates" on petitions coming before the committee.

The Chair stated that the committee must decide whether applications for special petitions should be made available. It was generally accepted that financial provisions were necessary, and that strict procedural guidelines and criteria would have to be established.

It was stated the committee needed to study the rules that brought this committee into existence. Since citizens were unaware of the existence of the committee or of special petitions, any publicity surrounding the availability of special grants would cause a "flood of petitions."

Mr Meyer stated the committee was created out of a constitutional obligation, and so no other laws or legislation apply to it. As such, Parliament retains complete jurisdiction. He added the role of the committee was not to grant petitions, but only to make recommendations to Parliament, which would then be passed on to the Executive for approval.

The Chair said that if they did not have the financial resources to provide pensions, then there was little use in having a committee for such a service. Sister Ncube stated the committee must define what its role is, and if they decide in favour of granting special pensions they must not do it on a case by case merit, but rather establish broad criteria applicable to all cases. It was decided that criteria needed to be established on which petitions would be judged.

There was debate over who would be responsible for providing the funds. It was unclear whether the Department of Welfare or Finance should fulfill the role.

The committee went on to discuss the petition of Mr P L Young, which was closed to the public.

Appendix 1:
TRANSFER OF CONVICTED PRISONERS DRAFT BILL

Private Members 'Bill
Submitted in terms of section 73(2)
Read with section 76(1) of the Constitution.

MEMORANDUM

Notice is hereby given of the introduction of a private member 's bill in terms of
section 73(2) read with section 76(1) of the Constitution. In terms of Rule 234
(read with rule 230[1]), a member must submit to the Speaker a memorandum
which -

(a) sets out particulars of proposed legislation;
(b) explains the objects of the proposed legislation; and
(c) states whether the proposed legislation will have financial implications for the State and if so whether those implications may be a determining factor when the proposed legislation is considered.

The Honourable Speaker is requested to deal with this Bill in terms ofsection 235 of the National Assembly Rules.

A. PARTICULARS OF PROPOSED LEGISLATION TRANSFER OF CONVICTED PRISONERS BILL

To provide for the transfer of convicted prisoners convicted in South Africa to their country of origin to provide for the transfer of persons convicted outside South Africa; to South Africa; and to provide for matters connected therewith or incidental thereto.

1. Short title
2. Definitions
3. Application of Act
4. Application for transfer of convicted prisoners
5. Conclusive Proof of Judgements
6. Imprisonment of convicted prisoners
7. Parole Board
8. Transfer of foreign convicted prisoners
9. Regulations

SCHEDULE: Specified countries.
ENACTED by the President and Parliament of South Africa.

1. This Act may be cited as the Transfer of Prisoners Act.

2. (1) In this Act

"foreign convicted prisoner" means any person who -

(a) is not a citizen of South Africa: and

(b) is a citizen of or ordinarily resident in a specified country, and

(c) is convicted and sentenced in South Africa to

(i) an effective term of imprisonment: or

(ii) an indeterminate period of imprisonment:

"imprisonment" includes placement of a juvenile in a training institute or reform school or any similar form of restraint of liberty that applies in a specified country;

"judgement" means the judgement of a court or tribunal in terms of which a convicted prisoner or foreign convicted prisoner was convicted and sentenced:

"juvenile" means under the age of eighteen years:

"Minister" means the Minister of Correctional Service or any other Minister to whom the President may, from time to time, assign the administration of this Act;

"convicted prisoner" means any person who-

(a) is a citizen or permanent resident of South Africa:

(b) is convicted and sentenced in a specified country to

(i) an effective term of imprisonment; or
(ii) an indeterminate period of imprisonment

3. (1) This Act shall apply to the transfer of convicted prisoners
and foreign convicted prisoners to and from South Africa
and any other country or territory specified;

(2) The Minister may amend the Schedule to specify any
farther country or territory or remove any specified country
there from.
4. (1) Where an appropriate authority' agrees to give effect to the
application of a convicted prisoner to be transferred to
South Africa in terms of this Act, it shall submit to the
Minister an application by the convicted prisoner in the
prescribed form, together with a copy of the judgment relating to the convicted prisoner certified as correct and signed by the appropriate authority.

(2) Upon receipt of an application the Minister shall. after consultation with the Commissioner of Correctional Services. indicate in writing to the appropriate authority whether or not he/she agrees to the transfer to South Africa of the convicted prisoner.

(3) If the Minister agrees to the transfer to South Africa of a
convicted prisoner he/she shall issue a warrant authorizing
the transfer of the convicted prisoner to South Africa form
the specified country concerned.

5. (1) A copy of the judgment shall be accepted as conclusive
proof within South Africa.

6. A convicted prisoner shall for the unexpired portion of his/her sentence of imprisonment be imprisoned in South Africa.

7 (1) The Parole Board shall have jurisdiction over a convicted
prisoner as if he/she had been convicted and sentenced to a
term of imprisonment in South Africa.

8 (1) Where a foreign convicted prisoner -

(a) is convicted and sentenced after the commencement of this Act. the presiding officer convicting and sentencing him/her; or

(b) The Commissioner shall inform the foreign convicted prisoner of the provision of this section if convicted and sentenced before the dated of commencement of this Act.

(2) If a foreign convicted prisoner wishes to be transferred from South Africa to a specified country of which he/she is a citizen or ordinary resident, he/she may apply in the prescribed form.

(3) The Commissioner shall forward any application to the Minister and the Minister may, after consultation with the Commissioner for Correctional Services agree to the application.

(4) Where the Minister agrees to an application, he/she shall submit to the appropriate authority of the specified country concerned a certified copy of the application as well as a certified copy of the judgement relating to the foreign convicted prisoner.

9. The Minister may make regulations prescribing -

(a) the form of an application;
(b) matters necessary to be prescribed for giving effect to this Act.

SCHEDULE
SPECIFIED COUNTRIE5

Determined in terms of membership of countries to the Commonwealth and other requesting countries in terms whereof transfer of convicted prisoners and foreign convicted prisoners would be possible.