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JUSTICE PORTFOLIO COMMITTEE
29 May 1998
NATIONAL PROSECUTING BILL [B113-97] Draft no 8: DELIBERATIONS
Documents handed out:
Draft 8 of the National Prosecuting Bill [B113-97]
Mr de Lange (Law Advisor) went through various amendments which had been made to draft no. 7.
He started with clause 14 which deals with the terms for special directors. s14(2) will now read that the term of appointment of a special director may be limited to a certain period, decided by the State President.
Mr Hofmeyr (ANC - Chair) asked Mr de Lange to ensure that the provision made clear that such a period would not go beyond the age of 65.
Mr de Lange replied that often it was preferable to appoint retired persons (judges etc) to such positions and that the age restriction would therefore be very restrictive.
Mr Hofmeyr agreed to leave the issue open for further consideration.
Mr de Lange then pointed to changes made to s17(1)(a) in terms of which the salary of the National Director would be no less than that of a High Court judge.
Mr de Lange then moved on to s22.
Ms Camerer (NP) asked what the point was of s22(1), when all it says it that the National Director should do his/her job.
Mr Hofmeyer (Chair - ANC) suggested that this clause should be reworked, possibly including the phrase suggested in footnote 16: "...exercises final or executive authority over...".
Ms Ngwane (ANC) agreed that some clause is needed saying that the National Director has final authority.
The committee moved on to s11(8). Mr de Lange clarified that s11(8)(a) refers to a person who can stand up in court and ask for a postponement, while s11(8)(b) refers to a person who is qualified to prosecute the case (for example, the legal officers of the Traffic Department who sometimes prosecute traffic-related offences).
Ms Ngwane (ANC) asked about the use of the word "personally" in s11(9), which seems to infer a private prosecution. The chair agreed that this should be changed to "in person".
Mr Hofmeyer (ANC - Chair) asked Mr de Lange to tighten up s24(4). He also asked whether it was not necessary to give the National Director power of review, as at present when a policeman is charged.
Mr de Lange answered that there was nothing to stop the National Director from assuming such a power. The status quo would be maintained.
Mr de Lange then referred the committee to the issue of public liability. He said that precedent dictated that it was not possible to be negligent in good faith. It was doubtful he said that such a clause would stand up to a Constitutional Court test.
Mr Hofmeyr suggested that the question should perhaps be fixed up in a later Interpretation Act. However, it is worrying and Mr de Lange's office should apply themselves to its resolution.
Ms Camerer (NP) pointed out that the heading to s33 refers to the "power" and should rather speak of "responsibility". If not, the act would go further than the Constitution does.
The chair agreed that this should be changed.
Ms Camerer then said that she found s33(3) with its reference to the Minister arranging meetings with Directors, ridiculous.
Mr Hofmeyr replied that it was a matter of courtesy for the Minister to inform the National Director when he/she met with the Provincial Directors, as they were not members of the Minister's staff.
Mr de Lange (Law Advisor) suggested that the word "arrange" be removed and replaced with a phrase which would put a duty on the Provincial Director's to attend.
Mr Hofmeyr suggested that this be added as s33(f) which would say that the National Director must arrange meetings at the request of the Minister.
Ms Ngwane (ANC) asked whether the committee was envisaging a situation where a person refused to attend such a meeting.
Mr Hofmeyr said that if the Minister called a meeting and the Provincial Directors refused to attend, there was not much to be done about it, whereas if the National Director called such a meeting, the Provincial Directors would be guilty of misconduct.
Finally, Mr de Lange referred to s34(2)(a) and (b) in terms of which the Minister is responsible to Parliament and has final responsibility. An outstanding issue to be discussed, he said, is the matter of prosecutors appearing in the High Court.
The meeting was adjourned.