Constitution Amd Draft: voting; Fund for Victims of Crime Draft: discussion

Meeting report

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS & SPECIAL PETITIONS MEETING
19 April 2000

Documents handed out:
Discussion of the Constitution of the Republic of South Africa Amendment Bill - Mr V Ndlovu (IFP) (See Appendix 1)
Portfolio Committee on Safety and Security - Summary of Views Expressed by Political Parties (As Amended)
Memorandum from Mr Douglas Gibson (DP) re: Private Members Bill: Fund for the Victims of Crime Bill 2000 (See Appendix 2)

SUMMARY
The party positions on the Constitution of the Republic of South Africa Amendment Bill proposed by Mr V Ndlovu were clarified as the follows:
In favour: IFP, DP, NNP, FF, ACDP
Against: PAC, ANC
A vote was taken on the Bill. The result was that the Bill would not be recommended to the Legislature.

A proposal was tabled by Mr Douglas Gibson (DP) for the establishment of a Victims of Crime Fund. This fund is intended to provide compensation for victims of crime who have not received any other compensation. Mr Gibson proposed that R 500 000 would be required for the establishment of the fund, and that other funds would be drawn from fines imposed by the courts, forfeited bail money and any other funds allocated by parliament. The fund would be administered by a board of five members, one of who should be a full-time member. The Ministers of Justice and Finance would be responsible for the appointment of the Board, as well the setting of parameters for the fund.

MINUTES
Constitution of the Republic of South Africa Amendment Bill - Mr Ndlovu (IFP)
The Chair welcomed members to the meeting and summarised the parties’ positions on the Bill as follows:
The DP supported the Bill, underlining that the devolution of power was essential in order to combat high crime rates in South Africa.

The NNP supports the Bill, stressing that strong national and provincial government are not mutually exclusive.

The FF supports the Bill on the basis that there is a need for a strong national and provincial government in order to fight crime.

The ACDP supports the Bill on the basis that it supports any measure to decrease crime.

The IFP supports the Bill as the powers of the police would be devolved to the lowest levels of government where accountability programmes and oversight functions could be best affected.

The PAC does not support the proposed Bill as South Africa is a unitary state and decentralisation into the nine provinces would create costly duplication.

The ANC does not support the Bill as it believes that the debate on the decentralisation of powers has long been redundant having been settled during the constitutional negotiations. It also believes that the process of transformation within the SAPS has not been completed, and that decentralisation will lead to duplication of services, disparate training and administrative ineffectiveness. The ANC believed that the provincial powers of the police were adequate and, if exercised properly, the police can become more effective.

Mr Ndlovu summarised his response to the submissions by the various parties and the SAPS (see Addendum B) and thanked the committee for their attention to the proposed Bill.

The Chairperson clarified the process of the meeting. He proposed that a vote be taken, and that a report for the Legislature be prepared in line with this vote. This report would be circulated so that parties may make use of the recess to prepare their responses.

Mr Gibson (DP) said that he wanted to compliment Mr Ndlovu on his response document as he felt that it dealt well with the responses of the SAPS to the Bill. He added, however, that the committee should be mindful of the fact that the SAPS were in a difficult position as this matter was essentially based on the political issue of devolution of power. The Bill is acceptable to parties in favour of decentralisation of power, and unacceptable to those who support centralisation. He added that the DP supports the Bill as the current crime situation is not under control - if the current crime situation were under control, the DP may well accept the status quo. He stated that provinces complain about the lack of resources, manpower etc to deal with the task at hand, but at the same time have political responsibility for the performance of the SAPS. There is a need for the SAPS to be accountable at the lowest level - for the ordinary person to have ownership of the SAPS. Greater co-operation and the empowerment of the local policemen and policewomen are the only ways to address the current situation. Police stations say that they have no manpower, while by international standard we are not understaffed - the fact remains that we are not succeeding in the fight against crime. The DP strongly supports the proposed Bill.

Ms Coetzee-Kasper (ANC) stated that she disagreed that there is a shortage of staff. She stated that devolution of powers would result in National government having no purpose. The Community Policing Forums (CPFs) may be working at local level, but there is no communication between them and the SAPS. Discipline and implementation are the only means to ensure better crime control.

The Chair ended the discussion session as it was felt that the issues being raised had already been argued at length. There was no more need for debate, but that the time had come for a decision to be reached. He reminded the meeting of some of the key issues in response to decentralisation. He stated that there may be a difference in the capacity of provinces to administrate effectively. There had been a drive in recent time to unify the police force, and that this Bill means that this process must be stopped in mid-stream and the newly unified force should be divided again. Crime may also shift as a response to decentralisation, and that the ‘new’ crimes would necessitate an integrated approach again. The idea of decentralisation had been extensively discussed during constitutional negotiations. He concluded by saying that this was a matter of party standpoint.

Mr Ndlovu thanked the ACDP, NNP and the DP for their support, and the members for their attention.

The Chair told the meeting that a report will be made to the House as to the party standpoints, but that the extended debated will not be reported. This can be done by the parties themselves in the National Assembly.

A vote was taken on the proposed Bill. The outcome was that the Bill would not be recommended to the National Assembly.

Fund for the Victims of Crime Bill - Mr Gibson (DP)
Mr Gibson took the meeting through his Memorandum.

The Chair reminded the meeting that this Bill was still a proposal, and that the format chosen by Mr Gibson in his presentation did not indicate otherwise.

Mr Gibson (DP) replied that this had been the easiest way of presenting the Bill, as it prevented confusion that might result from the many clauses. He continued that this Bill was not intended for those who had already received compensation for crimes, to receive additional funds. It is designed to benefit those without legal assistance, legal knowledge or help to institute claims in court, as well as possibly being able to grant compensation to those identified through the TRC process as qualifying for compensation. He continued that the idea of the Fund had been around for many years, and that this was a golden opportunity for this committee to act on this idea. The idea of a fund had received strong support from the previous Minister of Justice as well as had received a great deal of support at the ANC Congress of 1997. The issue was referred to the South African Law Commission, but no report had been received to date.

The Chair reminded the committee that this meeting was for clarification purposes, and proposed that it be referred to the Portfolio Committee for Justice for comment.

The following questions were raised by the committee members:
- Mr Ndlovu (IFP) asked why only the Ministers of Justice and Finance should be responsible for selecting Members of the Board. Should not the Minister of Public Service and Administration be included as this Department would be involved in the process of administering the fund?
- Regarding Paragraph 2(a) relating to those eligible for compensation by the fund, how will applicants to the fund be identified if they have received compensation from other areas? How will cultural differences be reflected in the process (e.g. if one family has compensated another by giving them cattle?)
- Is there any reason that five trustees be appointed to the fund?
- Which one of the trustees would be the full-time member?

Mr Gibson (DP) replied as follows:
- The Minister of Justice seemed appropriate, and would need to consult with the Minister of Finance regarding the selection of staff and available funds.
- Those already compensated in other ways have not been excluded from these categories, and there is a safeguard allowing for grants to be repaid should other compensation be awarded.
- Five is the appropriate number - it is an odd number to aid voting processes and allows for a reasonable spread of representability.
- The full-time member would generally be the Chairperson, but not necessarily. This would be up to the discretion of the Ministers of Justice and Finance.

Sister Ncube (ANC) raised the following questions:
Is this fund not setting a precedence? How can it be guaranteed that it will be self-sufficient and ongoing? What will be the criteria of each type of crime to set the level of compensation received by applicants?

Mr Gibson (DP) replied that the Board will decide about the amounts paid out, and would not be able to pay out more money that is available. This may mean that amounts paid out will not be very large, but must reflect the fact that the State is taking responsibility for failing in its duty to guarantee the safety and security of its people.

Sister Ncube (ANC) replied that she was still concerned that the many people eligible for compensation, as well as the magnitude of the administration of this fund will result in dissatisfaction. It would take billions of rands to make this fund viable.

Mr Ainslie (ANC) raised the following questions:
The costs of this fund need to be carefully considered. What is the R 500 000 for - the establishment of the fund and administrative costs or compensation? Are there any guidelines on the paying out of compensation? The Chair underlined the first question, asking where the figure had come from.

Mr Gibson (DP) replied that the figure was proposed by the people that he had consulted with in drawing up the proposal. He stated that this money was for the acquisition and setting up of an office, the establishment of a Board and a small seed capital. The Board and Ministers would set the parameters for the application and grant process. The Board would only be able to pay out the money at their disposal, and so would need to frame their parameters accordingly.

Mr Niemann (NNP) stated that the NNP would support the fund in principle, but he raised the concern that this country does not have the funds available to sustain the process. He said that he was sure that all the parties agreed in principle to the fund, but that the reality of the South African economic situation would prevent the fund from becoming a viable reality.

The Chair commented that the proposal does not clearly indicate the costs involved in this kind of fund. The South African Law Commission was also looking into the fund implications and questioned as to the findings of this report.

Mr Gibson (DP) replied that no report had been issued as yet. He continued that his proposal did not necessarily include large payments for grantees, but that society needs to see that government shows care and commitment. He continued that Finance and Justice should be responsible for working out the accurate figures involved in this proposal. To suggest that this fund is impossible before investigating further would be doing a severe injustice. We need to investigate what IS possible.

The Chair suggested that the proposed Bill be referred to the Portfolio Committees and Ministers of Justice and Finance, and that this matter be opened for discussion again once their feedback has been received.

The meeting went into closed session for discussion on matters of a sensitive nature dealing with a private petition.

Appendix 2

MEMORANDUM

TO: MADAM SPEAKER
FR: DOUGLAS GIBSON
DT: 01 MARCH 2000


Dear Madam Speaker,

PRIVATE MEMBERS BILL: FUND FOR THE VICTIMS OF CRIME BILL, 2000

I submit herewith a memorandum in terms of rule 234(1) for the purpose of obtaining the permission of the National Assembly in terms of rule 230(1) which contains in Annexure A hereof particulars of the legislation, drawn in the form of a draft Bill, Annexure B hereof an explanation of the objects of the proposed legislation and Annexure C hereof which refers to the financial implications of the Bill.

Kindly table the memorandum in the National Assembly and please refer it thereafter to the Committee on Private Members Legislative Proposals and Special Petitions.

Kind regards,

DOUGLAS GIBSON, MP.
ANNEXURE A

REPUBLIC OF SOUTH AFRICA

FUND FOR VICTIMS OF VIOLENT CRIME, 2000
(As Introduced)

PRIVATE MEMBER'S BILL

(MR. D.H.M. GIBSON)

[B-2000]


To provide for the establishment of a Fund for the Victims of Violent Crime, and a Board of Trustees to manage and control that Fund; to provide for the manner in which the Fund shall he operated; to define the powers, duties, functions and responsibilities of the Board of Trustees of the Fund; to regulate and provide for the procedures for applications for grants from the Fund; and to provide for matters connected therewith.
_________________

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

Definitions

1. In this Act, unless the context otherwise indicates-
"Board" means the Board of Trustees appointed by the Minister in terms of
section 4:
(ii) "court" means a court other than a traditional court;
(iii) "Fund" means the Fund established in terms of section 2;
(iv) "Minister" means the Minister of Justice;
(v) "victim" means any person who has been killed, or has suffered injury, whether physical, emotional or psychological, as a result of a violent crime committed against him or her, and includes the spouse or minor children of any such victim who died as a result of such violent crime;
(vi) "violent crime" means murder, rape, sodomy, indecent assault, public violence, terrorism, assault with intent to commit grievous bodily harm, kidnapping, or any combination of such crimes committed within the Republic, within the territorial waters adjacent to the Republic, or on board a ship or aircraft registered in the Republic.

Establishment of Fund

2. (1) There is hereby established a Fund to be known as the Fund for Victims of Violent Crime, into which shall be deposited-
(a) all payments made as fines imposed as sentences by any court;
(b) all bail money forfeited to the State in terms of section 66 or 67 of the Criminal
Procedure Act, 1977 (Act No. 51 of 1977); and
(c) any moneys appropriated by Parliament from time to time for the purposes of this Act.
(2) Notwithstanding anything to the contrary contained in the Exchequer Act, 1975 (Act No. 66 of 1975), all moneys available to the Fund may be utilised for the purposes set out in this Act.
(3) The Minister may, in consultation with the Minister of Finance, and after consultation with the Board, by regulation prescribe-
(a) the details of the management of the Fund;
(b) the procedure relating to grants from the Fund to victims;
(c) the form in which applications for compensation shall be made;
(d) the manner in which the accounts of the Fund are to be kept; and
(e) any other matter which he or she considers necessary or expedient to prescribe in relation to the control of the Fund.
(4) The Board shall keep such accounts as are prescribed by the Treasury, in consultation with the Auditor-General, and shall annually lay a financial report, including a balance sheet of the Fund, on the Tables of both Houses of Parliament.
(5) The books and statements of account, including a balance sheet, of the Fund shall be audited annually by the Auditor-General.

Victims may be recompensed from Fund

3. (1) Subject to subsection (2), any victim may, in the prescribed manner, apply to be recompensed from the Fund for injury or loss he or she suffered as a result of a violent crime perpetrated against him or her.
(2) A claim against the Fund shall not be entertained if the victim-
(a) has already received damages awarded by any court as a result of injuries or loss sustained during the particular violent crime perpetrated against him or her in respect of which he or she is applying for compensation; or
(b) has instituted an action for damages before any court as a result of injuries or loss sustained during the particular violent crime perpetrated against him or her in respect of which he or she is applying for compensation: Provided that if such action is unsuccessful, the victim may thereafter apply to be recompensed from the Find; or
(c) has already been awarded compensation in terms of section 300 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), in respect of the particular violent crime; or
(d) has, subject to sections 26 and 42 of the Promotion of National Unity and Reconciliation Act, 1995 (Act No. 34 of 1995), already been awarded compensation in respect of the particular violent crime, or has applied for such
compensation: Provided that if such application is unsuccessful, the victim may thereafter apply to be recompensed from the Fund.
(3) The Board may entertain the application by a victim and grant such claim in such amount as it may deem reasonable and appropriate, or reject the application, and shall in each such case supply reasons for its decision.
(4) If a victim has been awarded compensation in terms of this Act, he or she shall, subject to section 4, cede his or her right to claim damages in law in respect of. the particular violent crime perpetrated against him or her to the Board.

Renunciation of compensation

4. A victim to whom compensation has been awarded in terms of section 3(3) may within 60 days after the date on which the award was made, in the prescribed manner renounce the award and, where applicable, make repayments of the moneys paid to him or her in terms of section 3(3) and in such way retrieve his or her rights ceded to the Fund in terms of section 3(4).

Appointment of Board of Trustees

5. (1) The Minister shall appoint as members of the Board five trustees, who are -
(a) fit and proper persons;
(b) citizens of and permanently resident in the Republic; and
(c) capable of acting, as trustees in terms of the Trust Property Control Act, 1988 (Act No. 57 of 1988), to exercise fiduciary control over the Fund, and to carry out such other duties as may be prescribed under this Act.
(2) The Minister shall designate one of the members of the Board as Chairperson of the Board.
(3) At least one member of the Board shall serve in a full-time capacity.
(4) The Minister shall, in consultation with the Minister of Finance, determine the remuneration and allowances of the members of the Board.
(5) The Board shall be assisted in the performance of its duties by such members of the public service as the Minister, in consultation with the Minister of Finance and the Public Service Commission, shall determine.
(6) The Board may institute 1egal proceedings in any court to recover damages in respect of respect of rights ceded in terms of section 3(4).

Short title and commencement

6. This Act shall be called the Fund for Victims of Violent Crime Act, 2000 and shall come into operation on a date fixed by the President by proclamation in the Gazette.

ANNEXURE B

MEMORANDUM ON THE OBJECTS OF THE FUND FOR VICTIMS OF VIOLENT CRIME BILL, 2000

1. It is common concern that the crime levels in South Africa have reached alarming proportions, and this fact has been well documented by figures released from time to time by the Minister for Safety and Security and/or the South African Police Service. Another, even more, worrying trend has been the significant increase in violent crimes, such as murder, terrorism, rape, sodomy, indecent assault, assault with intent to inflict grievous bodily harm, kidnapping and public violence.

2. The South African Police Service has had limited success in apprehending the perpetrators of such crimes, and the current levels of violent crime show no immediate prospect of abating.

3. While the attention of the public is often directed at apprehending criminals, very little attention is typically given to the victims of violent crime, who, if they are not killed or subsequently die as a result of crimes committed against them, suffer losses and injuries for which they are not recompensed. The suffering includes emotional and psychological trauma, and victims are frequently obliged to undergo lengthy periods of medical and psychological care following a violent crime perpetrated against them. In these circumstances, and given the suffering invariably caused for the most vulnerable parts of society (the poor and, in particular, dependants of the poor), there is a clear need for such victims of violent crime to be compensated.

4. This Bill seeks to establish a dedicated fund to assist victims of violent crime. Into the fund will be paid all fines imposed as sentences by the courts, all bail moneys which are forfeited to the State, and such other moneys as may be appropriated by Parliament. The fund will be subject to auditing by the Auditor-General and to Parliamentary control.

5. The Bill empowers the Minister to appoint trustees for the fund, and to make regulations in terms of which the fund will be managed.

6. The Bill is inspired by, and partly modelled on, similar legislation in the United Kingdom, Moreover, considerable research in the field of criminology has supported the need for compensation of this kind.

ANNEXURE C

MEMORANDUM ON THE FINANCIAL IMPLICATIONS OF THE FUND FOR THE VICTIMS OF VIOLENT CRIME BILL, 2000

1. The financial implications of the Fund for the Victims of Violent Crime Private Members Bill for the state is not large. It is estimated that the cost of establishing the fund should not exceed R500 000 in the first year. The fund will, thereafter, become self-funding to an extent. The additional amounts to be paid into the fund, in terms of clause 2(1), are readily determinable by having reference to the accounts of the Department of Justice.