Discussion

The committee discussed briefly the new amendments. There was a disagreement on the amendment of Section 12 of Act 121 of 1998 and the chairperson ruled that this problem would be ironed out on Monday 30 August when the Committee next meets to vote on this Bill.

Ms Camerer (NNP) asked for clarity on the alleged comments by the National Director of Public Prosecutions, Mr B Ngcuka, who said he would go for Basson's assets even if that means changing the Constitution. Chairperson de Lange refused to allow the Committee to be drawn into that as he said that Mr Ngcuka's utterances were not the issue under discussion.

Chairperson de Lange said that the reasons for Judge Roux's decision to suspend the order forfeiting Dr Wouter Basson's assets were available to them. A copy of the judgement itself is not yet available but notes were taken by someone whilst the judge was giving his judgment which Mr W Hofmeyr would convey to them.

Mr W Hofmeyr, the head of the Assets Forfeiture Unit, listed the judge's reasons for the ruling:

(a) The judge found that the benefits mentioned in Chapter 5 of the Act do not have retrospective application.

(b) The judge found that the Applicant relied on hearsay evidence because he failed to file affidavits from, for example, the overseas bank managers in whose banks Dr Basson is alleged to have banked some of the alleged "proceeds of crime".

(c) The judge found that the forfeiture provisions in the Act apply only to the grounds created by the Act.

(d) Lastly, the judge found that the conduct of Mr Ngcuka's office was not in good faith. He said this office should have divulged the fact that Dr Basson had offered to come to an agreement with the Office concerning the case.

Mr Hofmeyr disagreed with the judge's findings. He pointed out that this is not an ordinary civil case because, by its nature it is an ex parte application. He went on to say that the Director of Public Prosecutions cannot be expected to sit down and discuss with criminals which of their assets must be attached.

Mr L Lever (DP) asked tongue-in-cheek whether Mr Basson had come forward subsequent to the judgement to reach an agreement with the Office. Mr Hofmeyr said that Mr Basson is not laying personal claim to the assets. When the matter is tried, his defence would probably be that he was acting as an agent for the State and though the accounts might be in his name the assets were for the State.

Ms Camerer asked about the cost implications as the judge had ordered the state to pay the costs. Mr Hofmeyr said they do not know the costs yet.

Chairperson de Lange asked what would happen to Dr Basson's assets in the United States. Mr Hofmeyr divulged that under their own law and on the basis of the formal letter that had been written to them, the American authorities are preparing their papers and they will proceed to seize Basson's assets.

An ANC Committee member asked when could the copies of Judge Roux's judgement be made available to the members. Mr Hofmeyr promised that they would try to obtain it as soon as possible.

Ms D Jana (ANC) pointed out that the judge also commented on the bad drafting of the legislation. "But he did not give an example of bad drafting did he?" replied chairperson de Lange. To that, Mr Hofmeyr explained that the major complaint by judges is that they feel this Act is too wide as it gives too much power to the State. He however defended the Act saying it is intended to be so. He continued to say that they nonetheless do look at any points raised against any particular part of the Act whether in the form of judgements or arguments to see whether certain clauses can be given a clearer meaning.

Mr L Lever (DP) suggested some safeguards to cater for the problem of the Act being too wide.

Mr M Mzizi (IFP) reminded the Committee members that one of the concerns raised by the judge was the question of retrospectivity in Chapter 5 which he (Mr Mzizi) had always raised concerns about. Mr Hofmeyr advised that experts warned them that at the beginning they would encounter problems with the courts in trying to enforce this law. He went on to say that in light of that, these challenges were expected. In responding to Mr Mzizi's concern he said that the judge was talking about the benefits of crime and not the crime itself when he referred to the retrospectivity question.

At that stage Chairperson de Lange asked Mr Smit of the Drafting Team to go over the new amendments contained on the Bill which was distributed that afternoon.

Whilst going over the amendments, Chairperson de Lange interrupted Mr Smit and raised a concern with the insertion of subsection (1) in Section 12 of Act 121 (offence definition) [ See Section 2 of Bill with Draft Amendments (B41-99) as of 26 August 1999]. He felt that this insertion was unnecessary. With the amendment in Section 12(3) he objected further and said the intention of the legislature must not be changed merely to soothe the interpretation style of a judge.

Mr M Masutha supported the chairperson's point of view. He advised that the best way of solving a problem be by way of an appeal rather than making amendments. In addition, Mr Masutha suggested the inclusion of a new clause at the beginning of the Act dealing with the whole question of the applicability of the Act.

Mr de Lange of the Drafting Team advised that it would be acceptable if Mr Masutha's suggestion be drafted as part of the Preamble. However no agreement was reached on this section.

Chairperson de Lange advised that although there was no agreement on the offence definition, it should be left as it is for further discussion. He informed the members "we basically have all our amendments on paper except this offence story". He suggested the members should meet again on Monday 30 August to take a decision on the offence question and then vote on all the clauses.