Criminal Procedure, public Protector, Witness Protection & Services, Magistrates Courts and (Assessors) Bills: discussion

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Justice and Correctional Services

22 July 1998
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Meeting report

JUSTICE PORTFOLIO COMMITTEE
23 July 1998
CRIMINAL PROCEDURE, PUBLIC PROTECTOR, WITNESS PROTECTION & SERVICES, MAGISTRATES COURTS AND (ASSESSORS) BILL: DISCUSSION

Documents handed out
Criminal Procedure Amendment Bill [B59-98]
Public Protector Amendment Bill [B79-98]
Witness Protection and Services Bill [B9-98]
Magistrates Courts Amendment (Assessors) Bill [B33-98]

DETAILED MINUTES
Public Protector Amendment Bill [B79-98]
Mr de Lange (Chair - ANC) welcomed Ms Mabeko at the meeting, to give a briefing on the Public Protector.

Ms Mabeko thanked the Chair. She pointed out that the Public Protector Act had been drawn up to give effect to the Interim Constitution. It now needs to be amended in line with the Final Constitution. Ms Mabeko proceeded to highlight the relevant amendments. Clause 1 and 2 are amended to remove references to the 1993 Constitution, s3(e) changes as the Constitution no longer refers to the Provisional Public Protector, a section 1A is inserted into clause 4 in consideration of s110 of the Final Constitution. Unlike the Interim Constitution, the Final Constitution makes no provision for joint sittings.

Mr de Lange (Chair - ANC) asked whether Ms Mabeko could explain the substance of clause 4. He said that the amendment removed the specific types of conduct previously mentioned, e.g. maladministration and now referred to "any conduct". An ombudsman should however be specifically empowered and not at liberty to report on simply anything. The Chair said that in his opinion the phrasing was too wide.

Ms Mabeko responded that the phrase was in line with the Constitution and that Mr Fourie from the Public Protector’s Office was prepared to come and explain this to the Committee.

Ms Mabeko continued to Clause 8. She said that it was proposed by the Public Protector’s office on the basis of past experience and investigation problems. Clause 9 stems from the Public Protector’s concern that they may be asked to investigate matters that happened a long time ago and which are therefore difficult to investigate. Hence the two-year time limit suggested in clause 9. sub (I) is in line with the definition of an investigation given in clause 1. The Public Protector wants discretion as to the procedure of the investigation and to decide whether it should be formal or informal. s9(c)(7) deals with circumstances where the Public Protector is not in the office. S9(e)(11) allows the Public Protector to make rules where necessary.

To Mr de Lange’s (Chair - ANC) question whether this was not tantamount to giving them legislative powers, Ms Mabeko replied that the Public Protector merely wanted some discretion to make its own rules. In terms of clause 10 all serious investigations must be reported to Parliament on an ad hoc basis.

The Chair then queried the appointment mechanism of 60% for Deputy Public Protectors, given that s182 of the Constitution referred only to the Public Protector, and asking why the Public Protector wanted more than one deputy.

Ms Mabeko responded that the 60% appointment mechanism was thought to be desirable and that the Act provides for "one or more" deputies.

Mr de Lange (Chair - ANC) said that the Committee would have to consider the documents submitted by the Public Protector’s office to find justification for the numerous changes which had been made. Clause 4 and page 10 (6) to (9) were far reaching and could not be passed in their present form.

Mr Groenewald (FF) asked what the international approach was to the situation raised in sub (6)-(9) and Ms Ngwane (ANC), why the Public Protector needed this investigatory power.

Ms Mabeko responded that the office of the Public Protector felt that their was too much confusion over the status of their investigations, with people refusing to give information on the grounds that they are not proper investigations.

The Chair indicated that this should be resolved by the Bill.

Criminal Procedure Amendment Bill [B59-98]
Mr Labuschagne (Law Advisor) told the committee that s29(5) of the Criminal Procedure Act had been scrapped by the previous amendment, with no substitution. The department felt that this situation was inappropriate and wished to install a temporary piece of legislation pending the report of the South African Law Commission (SALC). Clause 1, he said, by changing the age requirement, cuts the number of children in prison by half. The SAPS cannot investigate a matter within 24 hours and the time period is therefore changed to 48 hours. This is in line with the Constitution. Schedule 8 is new. Mr Labuschagne reminded the committee that it is a temporary schedule and said that often it was not in a child’s best interests to be remanded in custody in a police cell or lockup. The child must be kept safe in prison.

Mr de Lange (Chair - ANC) pointed out that ss6 assumes the availability of places of safety. He asked further whether ss7 meant automatic representation or representation through Legal Aid. He also asked for clarification of ss1 and 2.

Mr Labuschagne (Law Advisor) responded that ss7 referred to Legal Aid representation. In respect of ss1 and 2, s1 deals with the period before the juveniles first appearance and ss2 with the time after the first appearance, once the court has ordered them to be detained under a schedule 8 offence. This is done every 14 days.

Mr de Lange (Chair - ANC) suggested that the matter be checked with Mr Basset who drafted the provision, as his reading had been that the provisions dealt with serious and non-serious offences respectively. He expressed disquiet at the lack of clarity in the provision, which would be difficult for practitioners to read and understand.

Asked why the need for interim legislation, Mr Labuschagne responded that it was not known how long it would take for the SALC to complete its report. He suggested that s71A would probably also be scrapped, as long as s29 can be extended one year at a time.

The Chair suggested that given the provision deals with not only places of safety but a temporary child justice system, submissions were required from relevant people: Sloth-Nielsen, Prof. van Heerden, Anne Skelton, the SALC and child Welfare. To this effect advertisements were to be placed calling for submissions.

Witness Protection Services Bill [B9-98]
Mr Labuschagne told the committee that various submissions had been received in respect of clause 5 which deals with the panel.

Mr de Lange (Chair - ANC) asked whether a panel was necessary and how this was dealt with overseas.

Mr Labuschagne replied that the person who had drafted the bill had since resigned. It seemed to be that he felt a panel system was necessary.

The Chair suggested that a democratic panel was perhaps not the best way to deal with protecting an individual in secret. It seemed better that the decision lay with the Attorney General on the basis of whether the person was a good witness or not.

Mr Labuschagne responded that the idea seemed to be to keep the panel small with the Attorney General playing a central role.

Mr Hofmeyr (ANC) suggested that Mr MacAdam (Head of the TRC’s Witness Protection Scheme) be asked to speak to the committee.

Mr Labuschagne continued with clauses 6 - 16.

Ms Ngwane (ANC) asked what ‘office’ was being referred to in s6(1)aa(v) and clause 9. She pointed out that protected persons could also generate civil claims while under protection. Would these also be suspended, and if so what about prescription.

Mr Labuschagne said in reply that he did not feel protected persons could be sued.

The Chair suggested that this left some room for escaping liability and that the matter needed further consideration.

Magistrates Courts Amendment (Assessors) Bill [B33-98]
Mr de Lange (Law Advisor) gave the committee a brief history of the Bill. Before 1991 permission to have an assessor was granted only by the Minister of Justice and the person had to have specialised knowledge. In 1991 this requirement was removed and the assessor could also be involved in commuting sentences. Matters of law were left to the magistrate, who was also sole arbiter of what was law and what was fact. These changes were very controversial. In 1994 it became obligatory to offer an accused the option of an assessor. Interestingly 90% chose not to have an assessor. There was also resistance from Magistrates although the system was actively encouraged by the Department in a bid to involve the community.

This was also in line with s180 of the Constitution. The fears of some experts that this would lead to an erosion of fair trial was countered by the insertion of s180D.

The Law Society of the Cape of Good Hope is now questioning why the committee would want to allow lay assessors in civil trials. The Department is also hesitant because of budget constraints. For this reason the legislature does not feel particularly strong when dealing with criticism of s34 and is also considering a proposal that persons who insist on an assessor in a civil case should pay for the assessor. This is why the obligatory use of assessors is a difficult point.

Mr de Lange (Law Advisor) went on to say that this was the most important provision, as the legislature wants to formulate it in such a way as to put an obligation of sorts on magistrates while not clogging up the system and causing unnecessary expense. The exceptions are quite narrow: violent crimes and one or two others.

Changes to s3(a)-(c) allowing assessors to override magistrates have evoked strong reactions but, Mr de Lange argued, this has been the case for some time.

Mr de Lange (Chair - ANC) concurred. He pointed out that this is also so in the High Court, for example the Van Wyk case where Conradie J was overridden by the assessor.

Mr de Lange (Law Advisor) went on to stress the importance of the new s5 as absentee assessors make the courts’ work very difficult.

Again, the Chair agreed, referring to the facts which the committee had previously received on absenteeism. He said that there has to be a system for disqualifying people who just stay away and who continue to be untrustworthy, as it results in cases being delayed which has substantial cost implications.

Asked what sort of costs were involved, Mr de Lange (Law Advisor) said approximately R60 million per annum, running in 1000 courts. This has to be borne in mind when deciding when to use assessors.

The Chair suggested that consideration be given to clarifying the schedule by better defining concepts like "bodily harm". Cutting down on interpretations reduces the possibility of increased procedural reviews and appeals, as well as convictions being thrown out. He went on to ask whether the prosecutor should perhaps have some say in when an assessor is appointed.

Mr Hofmeyer (ANC) expressed concern about the cost and suggested that perhaps the cut off level be increased for obligatory assessors. Below that point the option still remained.

The Chair pointed out that this also needs to be well administered, for example dealing with all cases which need assessors on one day, rather than paying an assessor for a whole day, but only one case needing an assessor is on the roll. The High Court issue remains problematic in that the legislature is attempting to promote representivity but would be leaving out the least representative court in the country.

Mr de Lange (Law Advisor) said that a further point of concern was overtraining assessors and sending them to the Justice College. If they come to consider themselves a permanent part of the system, they may become a pressure group, lobbying for higher pay etc.

Witness Protection and Services Bill [B9-98]
Mr Labuschagne (Law Advisor) told the committee that the major problem with clause 1 was the need to define ‘member of family or household’.

Mr de Lange (Chair - ANC) suggested that it might be better to leave this to the Director’s discretion on a case by case basis. If a really important case comes along it may be expedient to protect anyone the witness wants protected. This should be left as a bargaining tool for the Director.

To the query raised by the Human Rights Committee regarding protection of witnesses for the accused, Mr de Lange (Chair - ANC) said he did not think that this happened anywhere in the world. He suggested that the definition of ‘witness’ be cleared up so that there was no possibility of gangsters calling press conferences to demand state-funded protection for their witnesses.

Mr Hofmeyer (ANC) pointed out however that the protection was offered on a discretionary basis, the provision being permissive therefore it did not matter how ‘witness’ was defined.

Mr de Lange (Chair - ANC) moved on to clause 2 where he pointed out that the programme is not independent, but is run by the Ministry of Justice.

Mr Groenewald (FF) suggested that the submission to clause 3 which appears to place a liability of sorts on state officials might be a matter for employment contracts.

The meeting closed.

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