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Meeting Summary

A summary of this committee meeting is not yet available.

Meeting report


23 August 1999
Documents handed out:
Bill with draft amendments as used in morning session
Bill with draft amendments as used in afternoon session

Chairperson de Lange said that under no circumstances would the Bill be sent to the Constitutional Court to determine its constitutionality before it was passed. This followed Ms S Camerer (NNP) query about whether reports in some weekend newspapers alleging that the Bill will first be sent to the Constitutional Court were true.

There were minimal amendments made to the Bill. After the lunch break, Chairperson de Lange informed the members that the voting on the Bill scheduled to take place that afternoon would no longer take place. He said that on Friday 20 August Judge JP Roux of Pretoria suspended the order attaching the assets of former chemical weapons expert, Wouter Basson, without giving any reasons. He said voting and passing of the Bill would take place when Judge Roux's reasons for the order were obtained. The members then agreed to postpone the voting for a week.

The members looked over the Bill with the amendments incorporated from the morning session and they were all satisfied with it. The next meeting is 9:30am on 25 August [Ed. Note: later changed to 2pm on 26 August].

Copies of the Bill with the draft amendments, as proposed in the previous meeting, were distributed. The chairperson asked the members to look at the Bill and see if their views had been correctly expressed.

Ms S Camerer (NNP) interrupted and complained about other Committee members having received the Bill with draft amendments by fax over the weekend. She averred that such an action had the effect of placing those who had just received the Bill in a disadvantageous position, as they would not have had enough time to look at it before it was discussed. The chairperson agreed that this was so and he regretted the fact that some members' fax numbers were not available at the time. He then promised Ms S Camerer more time should she desire it.

Ms Camerer then questioned whether the reports, which had appeared in weekend newspapers alleging that the Bill would be sent to the Constitutional Court first to be tested on constitutionality, were true. Chairperson de Lange stated clearly that there were no intentions of doing so. He pointed out that all judgements till then had been on the basis of technicality and not on constitutionality. Mr Hofmeyr from the Office of the National Director of Public Prosecutions, concurred that the Bill would not be sent to the Constitutional Court before it was passed. The Chairperson once more stressed that no judge had ruled on constitutionality of the said law and so there was no need to discuss that aspect.

Section 1 (Section 1 of Act 121, 1998)
Chairperson Mr de Lange asked if all the members were satisfied with the definition in that Section. Ms Camerer (NNP) raised a concern whether such a definition would not contribute to chalking out the legislation by the courts on the grounds of unconstitutionality. Chairperson de Lange assured her that this definition depicted the clearest possible way that can be thought of. Mr Smit of the Drafting Team supported the chairperson's statement and said that similar wording appears in Section 5.

Mr M Cassim (IFP) raised a concern about the use of the words "…at any time…" in the definition. He asked whether this meant that the proceeds of a crime which had taken place 300 years ago would be affected by the legislation. Chairperson de Lange replied that they did not want to place a restriction here. Since it would be difficult to obtain evidence for a crime that had taken place a number of years ago, the possible likelihood was that such a case would not be affected.

Chairperson de Lange asked the Committee members to skip Sections 2, 3 and 4 as they dealt with Criminal Forfeiture and said they would be considered later.

Section 5 (Section 38 of Act 121, 1998)
Chairperson de Lange clarified that Option 1 was favoured by the ANC; Option 2 was the supported by the ACDP and NNP and Option 3 was the DP's option.

Mr M Mzizi (IFP) commented that a person with a personal vendetta against another might falsely claim another's property to be proceeds of a crime. Chairperson de Lange said that such an accuser's claim would not succeed. He said that is why this section refers to a preservation of property order.

Section 6 (Section 47 of Act 121, 1998)
Mr Smit of the Drafting Team went over the various options.

Dr T Delport (DP) criticised the provisions of the ANC's Option 1. He maintained that it takes away the right of the court to change its own order. He argued that, as it stands, this section states that even if the first order was wrong, the judge would nonetheless not be able to change it. He believed this to be unconstitutional. Chairperson de Lange asked Dr Delport whether he had any authority regarding his statement. At this stage a heated argument ensued between Chairperson de Lange and Dr Delport with Mr de Lange claiming that he was not prepared to listen to any general statements which were not supported. Dr Delport said he had no authority but he felt the Bill would not pass the constitutionality test.

Ms S Camerer (NNP) raised concerns about the fairness of this section. With her as well, Chairperson de Lange asked for authority. She admitted she had none. Chairperson de Lange said he was not prepared to answer anyone who cites the unconstitutionality of the Bill without substantiation. He then decided to explain to the members once more the difference between civil and criminal forfeiture as he felt that the types of concerns raised by the members were due to a lack of understanding of these concepts.

Ms F Chohan-Khota (ANC) reasoned that she saw no ground for the arguments raised by Dr Delport and Ms Camerer. Ms N Botha (ANC) echoed the same sentiments. Mr Hofmeyr added that the US law system provides for seizures and that system had been held to be constitutional. Further, he reminded the members that there are safeguards in this law as provided by Sections 44 and 47. He concluded his input on this Section by saying that there is therefore no ground for saying this law is unconstitutional.

Chairperson de Lange asked for further input on this section and there was none.

Sections 2, 3 and 4
He then directed members to look at Sections 2, 3 and 4 which deal with Criminal Forfeiture. Very few amendments were made to these sections and the meeting was adjourned until after lunch when voting would take place.

Afternoon session

After lunch Chairperson de Lange narrated to the members that on Friday the 20 of August the judge in the Wouter Basson case made an order suspending the order seizing Basson's assets without giving any reasons for the order. He said after Mr Hofmeyr briefed the Minister on that, they felt that the Bill must not be passed by Wednesday the 25 of August because they first had to find out why the judge suspended the order in the Basson case. He therefore explained that there would be no voting that afternoon.

Dr Delport announced that his party had a motion to propose: that voting on the Bill be suspended for 21 days so as to avoid mistakes which may occur if the Bill were rushed. He then asked that this motion be supported.

Chairperson de Lange said that he definitely did not support the motion. He was convinced that within a week's time, views as to why the judge suspended the seizure in the Basson case would be obtained. He said he did not want the Committee to drag out the matter any longer.

The Chairperson then asked each party to comment on the matter. Ms S Camerer (NNP) said a postponement for a week was fine. Mr N Swart (ACDP) supported a postponement for a week. Mr C Nel (ANC) strongly attacked the motion by the DP and termed it irresponsible. He said such a suggestion from a party which constantly accuses the Government for being soft on criminals, was astounding. Mr Mzizi (IFP) expressed concern about whether thorough research had been made before the Bill was rushed through. Chairperson de Lange advised him that his approach is never to pass anything which he views as unfinished.

Responding to the chairperson's question whether he would like to put his motion on a vote in light of the parties' views, Mr Delport withdrew his motion. He nonetheless expressed doubt on whether the Committee would come up with anything in seven days' time.

Chairperson de Lange asked the members to look at the morning's proposed amendments that had been newly added to the Bill.

An amendment changing the word "executor" to "trustee" was noted in section 2. A lengthy discussion ensued concerning Section 6 (the Innocent Third Party clause). Ms Camerer was of the view that an affidavit by an attorney stating that the fees paid by a client were not the proceeds of crime should be conclusive proof unless evidence to the contrary existed. Both Chairperson de Lange and Mr Hofmeyr disagreed saying that the signing of an affidavit would not suffice. Chairperson de Lange stressed that the issue was to stop attorneys' trust accounts being used for money laundering. The Committee then looked at the Preamble and after a concern by Mr Mzizi (IFP) was addressed the members agreed that the Preamble was to their satisfaction.

Chairperson de Lange then announced the Bill as containing the Committee's desired amendments. He repeated that the Committee was now waiting for the reasons why Judge JP Roux suspended the attachment order in the Wouter Basson case. He told the members that they would hear from Mr Hofmeyr about the judge's decision. The Chairperson then adjourned the meeting to the provisional date Wednesday the 20 of August.


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