Criminal Procedure Amd Bill (S29 Detention Of Juveniles); Administration of Estates Amd Bill; Constitution of RSA Amd Bill; Supr

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
17 May 2001
- DESIGNATION OF IRELAND: EXTRADITION ACT
- INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
- MAGISTRATE SUSPENSION
- CORRUPTION AMENDMENT BILL (PRIVATE MEMBER'S BILL)
- CONSTITUTION OF RSA AMENDMENT BILL
- SUPREME COURT DECREE 1990 (CISKEI) AMENDMENT BILL -
- ADMINISTRATION OF ESTATES AMENDMENT BILL
- S29 OF CRIMINAL PROCEDURE AMENDMENT BILL (DETENTION OF JUVENILES)

Chairperson: Adv J de Lange

Documents handed out:
Treaty on the Vienna Convention on the Law Of Treaties.
Supreme Court Decree 1990 (Ciskei) Amendment Bill.
Administration of Estates Amendment Bill.
Letter from Chief State Law Advisor concerning: Second Optional Protocol to International Covenant on Civil and Political Rights.
Corruption Act Amendment Bill.

SUMMARY
The Committee agreed to the Designation of Ireland (Extradition Act) amending the resolution to ensure that it would constitute a competent verdict. Parties will caucus on the International Convention on Civil and Political Rights as once signed, a country cannot opt to withdraw it.

With regard to the dismissal of a magistrate which the Committee must process, the Chairperson noted that this a new issue and even he did not know what the role of the Committee. However the initial hearings should be fair and in accordance with procedure. There was insufficient documentation at hand to establish this.

A presentation on the Private Member's Bill, the Corruption Amendment Bill will be made on 22 May 2001. It was noted that the Anti-corruption Act is deemed a useless piece of legislation by judges and that someone in the department has been appointed to draft legislation on corruption from scratch.

Other bills discussed at length were the Constitution of RSA Amendment Bill, Supreme Court Decree, 1990 (Ciskei) Amendment Bill, Administration of Estates Amendment Bill and Section 29 of the Criminal Procedure Amendment Bill ( Detention of Juveniles).

MINUTES
Designation of Ireland in terms of S 21(b) of the Extradition Act 1962 (Act 67 of 1962)
Mr Arliss (Department Of Justice) explained various issues around this Act. In particular, the Extradition Act provides that one may only extradite under certain circumstances. He explained that it was necessary to define the crime committed and that competent verdicts would also apply. In 1996 the Act was amended and the Rule of Speciality with regards to designation was included, but the President did not make provision for competent verdicts in his minutes. Mr Arliss stated that the shortcoming of the legislation was that S19 did not make provision for the rule of speciality with regards to competent verdicts.

The Committee was asked to adopt paragraph 1 of the special resolution after adding the words "or an offence of which he may be convicted on a charge for which extradition was sought." This would constitute a competent verdict. It was adopted by the Committee.

International Convention on Civil and Political Rights: 1^st and 2^nd Optional Protocols
The Chairperson brought to the Committees' attention that South Africa, if it assented to the Second Optional Protocol, would only be able to withdraw after each other contracting party agreed that South Africa did not have to be bound to the Protocol.

The Chair also highlighted that if the Committee approved the Treaty then the Committee would be agreeing to the exclusion of the Death Penalty. This only posed a problem in so far as it would be very difficult for South Africa to withdraw from the Treaty at a later stage.

Due to the fact that once the treaty is signed, the country may not opt to retract it, the Chairperson suggested that the members take the decision to their respective parties. When all parties have made a decision the Chair suggested the matter be brought back to the Committee for a final decision.

Suspension from Office: Magistrate H Zulu
Magistrate Zulu was asked to comment on his dismissal by the Justice Committee. In his correspondence to the Committee he stated that he was discriminated against and that racism within the Department resulted in his dismissal.

The Committee was asked to comment and take action regarding the dismissal of Magistrate H Zulu. The Chairperson said that there was insufficient documentation before the Committee. The documentation did not refer to the process undertaken to effect the dismissal. Further the charges were not recorded neither was the evidence and findings.

A Department representative stated that Mr Zulu was invited to attend the dismissal hearing, but failed to do so. The inquiry was held in his absence and a ruling was made that he should be dismissed. The Chairperson was wary and advised that it was unconstitutional for persons who were investigating misconduct, to rule that the person should be dismissed without there being a fair hearing. The Department representative stated that dismissal procedures as regards Magistrates allowed for the contrary. The Chairperson repeated that this could be unconstitutional. He asked the representative to bring a report, detailing the procedure followed and copies of documentation regarding Mr Zulu's dismissal, to the Committee.

The Committee decided that the matter could not be decided upon at that stage.

Other members asked what the role of the Committee was with regards to the dismissal of a magistrate.

The Chairperson responded that this was a new issue before the Committee and even he did not know what the role of the Committee was but reiterated that first and foremost, the initial hearings should have been fair and in accordance with procedure.

Corruption Amendment Bill ( Private Members Bill)
The Chairperson stated that Mr Les Roberts from the Attorney General's Office had commented that the Anti-corruption Act was a useless piece of legislation. The Committee had previously suggested changes to the legislation. Mr Tsoka had been appointed and asked to draft an Anti-corruption Act from scratch. Further he was told to ensure that the Act covered every aspect of corruption.

Sometime thereafter, the Chair explained, Ms Taljaard (DP) submitted a one clause Bill into Parliament. The Bill proposed by Ms Taljaard dealt only with the organizational misuse of public office. The Chair told Ms Taljaard that he agreed with the sentiments of the amendment but that the amendment was premature. At that time he suggested that Ms Taljaard leave the matter with the Committee who would address the matter to the Department Of Justice. The Chair said that the Committee would request an Amendment to the Anti-corruption Act and ensured Ms Taljaard that her proposal would form part of the amendment.

The Chairperson stated that he assumed that the matter was settled. Thereafter he received a letter from Ms Taljaard stating that she was dealing directly with the Department Of Justice as she felt that the matter was being delayed. The Chairperson told the Committee that he wrote a letter to Ms Taljaard telling her that at no stage should she have written to the Department on behalf of the Committee. The Chairperson stated that even the Department Of Justice responded to Ms Taljaard. She was informed that Anti-corruption legislation was being drawn and that her submission was presumptuous and did not take the legislative process into consideration.

The Chairperson has requested Ms Taljaard to make a presentation to the Committee on 22 May 2001. The issue was left for discussion for the 22 May 2001.

Constitution of RSA Amendment Bill [B4-01]
The Chair highlighted a particular problem with the Bill to the Committee. The Bill says that the South African National Defence Force will comprise of the old UDF, Bantustan armies and the MK. This was taken to be a principle in the Constitution. The Schedule 6 Annexure states that MK and APLA must join the army by means of a list compiled by their respective institutions. The Department of Defence wants to amend the Constitution by removing clause 6 of the Annexure. At the same time they are trying to pass a Bill creating a cut off date for the MK and APLA lists. The Chair argued that if the cut off date were included in the new Bill and not in the Bill of Rights, the Limitations Clause would not apply. He asked how the cut off date would be limited by law. He inferred that if the Bill were passed, a member of APLA could be denied admittance on the basis that there was a cut off date. The Chair remarked that denial on this basis could be constitutionally challenged.

Adv de Lange suggested that the Committee not pass the legislation because of the suggested cut off date. He suggested instead that the Constitution be amended by removing S6 of the Annexure and adding that the other armies cannot join the SADF after a certain date. He suggested this to the Department of Defence who partially agreed. The Chair stated that the Committee was currently seeking the opinion of their Law Advisors.

The Chairperson suggested that the Committee should either continue or withdraw the Bill. However no decision was taken at that point.

Supreme Court Decree, 1990 (Ciskei) Amendment Bill
Mr de Lange (Department of Justice) stated that the Bill was awkward for the Department largely because the Supreme Courts in the country had not been rationalised and this Bill attempts rationalisation of only one of these Supreme Courts. Furthermore, there are discrepancies between the legislation of the former TBVC states and the High Court (formerly the Supreme Court). A more fundamental problem is that the High Courts are functioning in terms of the Supreme Court Act, which according to the Constitution no longer exists.

Mr de Lange insisted that the rationalization of the High Court had been kept in abeyance due to a number of reasons. In his view the Ciskei Amendment Bill approaches rationalisation in a very "piece meal" manner. He stipulated that ordinarily the Department would be very hesitant to approach rationalisation in this way.

Mr de Lange informed the Committee that the Department has proposed a comprehensive plan to rationalize the High Courts. The purpose of the plan is to develop comprehensive legislation for the High Court structure as a whole and to repeal all other laws. He said that the process of rationalisation was slow since, in his view, rationalisation coincided with the transformation initiative.

Mr de Lange stated that the Department was reconsidering the status of the High Courts, the establishment of a single judiciary, the position of chief-justices and the position of various special courts, amongst other things, within it's rationalisation plans.

Mr de Lange said that the Department needed to decide whether it wanted to implement a comprehensive rationalisation plan in twelve months time or whether it was going to approach rationalisation in a piece meal manner.

Mr de Lange stated that it was necessary to amend the decree for practical reasons. There are three courts in Bisho with the High Court consisting of a bench of five judges. The Judge President (Judge Trichard) is also Judge President of a Special Tribunal. The Special Tribunal in East London has three courts that are empty most of the time. For this reason, the Bisho judges have asked if they could use the courts in East London to complement the courts in East London. Judge Medelson of Grahamstown is currently using two of the Special Tribunal facilities in East London. Judge Prichaard wants to use one of the courts of the Special Tribunal when it becomes necessary.

Mr de Lange contended that the proposed amendment was simple - the Committee was being asked to change part of the Supreme Court Decree (Ciskei) so that the courts jurisdiction was expanded from the former Ciskei, to the greater Eastern Cape Province.

The Department of Justice has received comments on the issue. Judge Fairmont from the Eastern Cape expressed severe reservations to the amendment. Judge Pickering suggested replacing the words 'Supreme Court of Appeal' in the Decree, with the words 'High Court'. The Department stated that they did not wish to implement these changes since it would compel the Department to revise the Bill in its entirety, where as such revision was planned for the near future.

Discussion
Mr Delport (DA) contended that the issue related to where the court could physically sit, rather than where it had jurisdiction. In his view the proposed amendment was a minor issue and could be passed in a minute.

Mr Mngeni wanted to know when the Interim Rationalization Bill was due to be passed. Mr de Lange responded that it should be passed by the end of June. The aim of the Department was to introduce the Constitutional Amendment Bill by July or August this year.

The Chair asked if there was any progress with regards to the rationalization of the Magistrates Courts. Mr de Lange stated that Magistrates Courts had already been rationalized. In terms of the Magistrates Courts Act, the Minister of Justice had the power to demarcate boundaries and hence a new Act need not be passed to effect changes.

Administration of Estates Amendment Bill
The Chair explained that the Committee was being asked to pass this Bill by the Minister as an interim measure because the Master's Office had never been rationalised. The result was a problem with the Guardian's Fund - especially with regards to the Homelands. He asked Mr Laubuschagne (Department Of Justice) to explain the Minister's request.

Mr Laubaschagne explained that African estates are dealt with differently compared to other race groups. Hence, the Constitutional Court declared part of the Administration of Estates Act unconstitutional. As a result, the Law Commission refused to consider the Administration of Estates Amendment Bill because it too was unconstitutional.

Thereafter the Justice Committee was informed that the Law Commission was conducting research into the Deceased Estates of African people. The Justice Committee felt that it should wait for the Law Commissions' report.

However, the Attorney General has failed to audit the accounts of the former TBVC states. The Attorney General argues that auditing is impossible because the states operate in terms of their own laws and as a result the Auditor General does not have the authority to audit these funds. Consequently the Minister of Justice has asked the Chairperson of the Justice Committee to pass the Administration of Estates Amendment Bill. The aim of the new Bill is to rationalise the Administration of Estates Act, meaning that the South African Act will be applicable in the former TBVC states. This will allow the Auditor General to audit the Guardians Fund of the TBVC states.

The Chairperson asked whether Magistrates would still manage Black Estates. Mr Laubaschagne replied that this would unfortunately still be the case. The Minister of Justice would appoint a Master for the High Court and South African law would apply. Mr Cronje, the researcher from the Law Commission, said that this issue would be dealt with in September 2001.

Adv de Lange suggested that the Committee go through the Bill and discuss the matter at the next meeting.

Criminal Procedure Amendment Bill - s 29 ( Detention of Juveniles)
Mr de Lange (Department Of Justice) addressed the Committee on the Bill. He explained that S29 of the Correctional Services Act makes provision for the detention of unconvicted juveniles. S29 was amended in 1994 to state that any person under the age of eighteen years could not be kept in police cells or the courts lock up facilities. Mr de Lange contended that this had created many practical problems that had impacted negatively on the Criminal Justice System - largely as a result of having very few secure facilities.

To address this problem the Private Members Bill was introduced in 1996. In terms of this Act the courts had a limited discretion to order the detention of unconvicted young persons. This amendment was intended as a temporary measure. Due to further problems, S29 was removed from the Correctional Services Act and put into the Criminal Procedure Act. This gave rise to the Criminal Procedure Amendment Bill of 1998. This Bill was overhauled by the Justice Committee and the Commission proposed a new Bill in 1998. The Ministry of Welfare had problems with the Bill which was then not passed at Parliament. Amendments were considered but the matter was not taken further. Subsequently the South African Law Commission's Report on Child Justice suggested either implementing the old Juvenile Bill or compiling a new Bill on Child Justice. The Law Commission stated that the introduction of the new Bill would be around August 2001, and that the Department was preparing other Departments for the implementation of the Child Justice Act.

In the meantime the position is still unresolved as far as juveniles are concerned.

Discussion
The Chair stated that the Committee had discussed the matter extensively and that they were now at a stage where the matter should be reintroduced. He stated that the NCOP had suggested a few technical amendments, whilst the Department Of Welfare had other suggestions. He requested Mr de Lange draft a letter to the Department of Justice and to forward copies to the Minister of Welfare to allow the Welfare Department to comment.

It was decided that the Bill should not be passed at that stage.

The meeting was adjourned.