Discussion

Meeting report

PREVENTION OF ORGANISED CRIME SECOND AMENDMENT BILL
AD HOC COMMITTEE
17 August 1999
DISCUSSION

 

Documents handed out:
Notice of Motion in the Wouter Basson case
Portfolio Committee Amendments to the Prevention of Organised Crime Second Amendment Bill as of 18/8/99

SUMMARY
Mr W Hofmeyr from the Office of the National Director of Public Prosecutions took the Committee through the amendments made. Chairperson de Lange went through the Bill clause by clause, pointing out what the consequence of the amendments would be. Committee members deliberated in particular the proposed amendments in Sections 26 and 38 of the Principal Act. Mr Hofmeyr responded strongly to those members who argued for application of less strict measures on the seizure of property which happens to be the proceeds or suspected proceeds of crime. Mr de Lange informed the members that the following day the meeting would start with the discussions on the less controversial issues. He then adjourned the meeting until the next morning.

 

MINUTES
Mr Hofmeyr took the Committee through the proposed amendments made by the Committee up to that stage.

Mr de Lange explained to committee members that in Section 1 an " instrumentality of an offence" means property which a person uses in committing a crime and "proceeds of crime" means the benefit which one gets as a result of the crime.

At that stage Dr L Luyt (FA) apologised for his absence the previous day and, asked about the bearing this law had on the issue of retrospectivity. Mr Hofmeyr answered him by way of an example. He explained that if a Government outlaws all AK 47 rifles by a provision in a law, then whether one acquired it before or after the law was passed, it remains an AK 47 which is illegal to have. Mr Hofmeyr went on to say that this is the drafters' contention for this law and so there is no doubt regarding retrospectivity. He submitted that should the courts allege an element of retrospectivity, the defense they will use is that this law reads the way it does so as to protect the rights of the people.

Dr Luyt asked whether the procedure that is used in seizing property is by way of an ex parte application (application to a court without notice to the person against whom a remedy is sought). Mr de Lange replied that attachment applications are made to the courts ex parte but when forfeiture of the property is sought, the application is on notice.

Ms P Jana (ANC) was concerned that this law could be said to be constitutional. Mr Hofmeyr submitted that this law will no doubt be challenged in the Constitutional Court but it will certainly pass the constitutionality test.

A Committee member suggested that our system of law is being abandoned by this invention of now proceeding against property and not against the offending person. Mr Hofmeyr disagreed stating that this concept is not foreign in our law. He gave an example of Customs law, which states that if someone brings something illegal into our country, the customs officials simply confiscate the illegal item. Mr de Lange echoed Mr Hofmeyr's opo\inion strongly opposing the criticism of the law by this committee member. He reminded the members that this Act has already been passed by Parliament and that now to criticise its existence does not help at all.

Mr Delport (DP) enquired whether the words "unlawful activity" have been deliberately used through out the Bill instead of the words "criminal activity." Mr Hofmeyr gave him the explanation that to use the words "criminal activity" would mislead the court. He further said that an unlawful activity is something not authorised by law.

Mr Hofmeyr went on and explained the essence of Section 2 (8). He said this Section was drafted for fear that property about to be seized may be "lost" or vandalised by the people against whom a seizure order is to be sought.

Mr Delport challenged the use of the word "shall" in Section 4 (3) and submitted that it must be replaced by the word "may". He pointed out that the word "shall" dictates or forces a judge to make an order. He reasoned that at this stage of the process, the judge has not heard the defense of the person accused and so to force a judge to make an order against this unheard person is incorrect. Mr Delport said that they must have confidence that the judiciary will make the right decisions and that they must not force judges to rule in a certain way. Further, Mr Delport advised that the appeal provisions in Section 5(4) must be scrapped.

Mr Hofmeyr replied that this law is concerned with fighting a very serious crime and therefore strict provisions ought to be applied. On the question of scrapping the appeal provisions, Mr Hofmeyr said that it is a judge who gives leave to appeal because he recognises that another judge may come to a different conclusion. Mr Delport responded by stating that he finds it a problem that the judge's discretion is being taken away. He asked again why should that be done.

At this stage Mr de Lange reasoned that if the said "shall" is removed, then what this legislation tries to achieve will not be achieved. He went on to say that the word "unless" as one continues to read the section shows clearly that the judge's discretion has not been snatched by Section 4 (3). He added that an inquiry into whether the property concerned is the proceeds of crime would have been made before the matter came before the judge and so, the "shall" does not take away the judge's discretion because, on a balance of probabilities, a decision would have been made earlier.

Mr H Schmidt (DP) criticised the Section 4 provisions. He submitted that this section narrows the discretion of the judge because other than in instances where undue hardship would arise, a judge with another ground of refusal in mind, would now not be able to refuse the seizure.

Chairperson de Lange explained to the Committee that they were dealing with property which is the proceeds of crime. He said the seizure that is talked about in the Act is not a general seizure of property. He nonetheless informed the members that at that stage no views would be excluded. He then reminded Mr Hofmeyr to take down all views expressed for further consideration.

During this meeting a number of different options to Section 2 [Section 26 (8) of the Principal Act] and Section 3 [Section 29 (A) of the Principal Act] were were proposed by members. Mr Hofmeyr and his team recorded these so that they could be drafted as optional amendments.

Mr Hofmeyr make a strong appeal to committee members saying that they were not there to play games. He pointed out that what they aspired to achieve is to stop organised crime not only by South Africans but by clever criminals from other international countries. He reminded the members that they were not dealing with the ordinary man in the street but with very sophisticated syndicates and educated criminals. He concluded that they were drafting law which would not be susceptible to exploitation by clever lawyers.

Mr de Lange commended Mr Hofmeyr for such a good point to end the day. He reminded the members that the next day they will meet at 9:30 at the Good Hope Chamber and he closed the meeting.