Witness Protection and Services Bill [B9-98]: discussion

Meeting report

JUSTICE PORTFOLIO COMMITTEE
27 JULY 1998
WITNESS PROTECTION AND SERVICES BILL [B9-98]: DISCUSSION

Documents handed out:
Summary of Submissions on Witness Protection and Services Bill [B9-98]
Witness Protection and Services Bill [B9-98]
Births and Deaths Registration Amendment Act [B42-98]

MINUTES
Here follow the clause by clause deliberations:
Clause 1
The Committee accepted the suggestion from the Human Rights Committee that the definition of witness be extended to include "any member of the family or household" and that the terms "relocation" and "resettlement" be defined.

Clause 2
Mr de Lange (Chairperson - ANC) asked Mr Kleynhans to comment on Clause 2. Mr Kleynhans pointed out that although Witness Protection is currently a joint undertaking by the Departments of Justice and Safety and Security, it is very difficult to obtain the services of the SAPS. At present 340 witnesses in Kwazulu-Natal are protected by only 10 policemen, while the Eastern Cape has 14 policemen protecting 70 people. As it stands, s2(7) leaves an opening for SAPS members to refuse to cooperate. Furthermore, he felt that the section should spell out the functions of persons seconded.

Mr MacAdam (Head of Witness Protection for the TRC) agreed that he had also found that the SAPS could not be relied on. He pointed out the necessity of entering into agreements with other departments, as the TRC has done e.g. using Correctional Services, Public Works Department and Ministry of Defence facilities and staff.

Mr Kleynhans said that while this was feasible for the TRC which was a legal entity, it was not possible for the state, being indivisible, to enter agreements with itself.

Mr de Lange (Chairperson - ANC) suggested that Mr MacAdam’s point seemed to be that the Witness Protection Service should be multidisciplinary. This would require an umbrella provision and would also require a triggering mechanism, possibly a request from the Director-General.

Mr Hofmeyr (ANC) voiced concern about lines of command. He pointed out that s2(7) allows that "...secondment shall not affect any powers, duties or privileges which any seconded person may have in terms of the law", which seems to indicate that the person would use their usual line of command, rather than reporting to the Director General.

Mr MacAdam responded that persons seconded are usually very concerned about forfeiture of privileges e.g. promotion and bonuses. He suggested that s2(7) be reworded to reflect this and that the matter of reporting be dealt with separately.

Clause 3
The Committee agreed that s3(c) be amended to compel other departments, persons and institutions to carry out the requests of the Director General. Mr Hofmeyr (ANC) pointed out that when the Director General requested a new ID document for a witness, this should not be a matter for debate in the Home Office.

Mr de Lange (Chairperson - ANC) was particularly concerned about the need for a strong confidentiality clause, suggesting that anyone who put a protected person's life in danger "be hit so hard that they reel for the rest of their lives".

Mr MacAdam suggested that the Director General be empowered to market the Witness Protection programme, for example using Business against Crime to obtain jobs for protected persons.

Mr O’ Malley (IFP) pointed out that "witness services" was not defined in the Bill. The Chairperson asked Mr Labuschagne (Law Advisor) to look into whether it was necessary to define the term or whether it should be left to the Director General.

Clause 4
Mr de Lange (Chairperson - ANC) requested that all reporting requirements be grouped together at the end of the Bill.

Clause 5
Mr de Lange (Chairperson - ANC) expressed concern at the use of panels to decide on Witness Protection, as these increased the possibility of leaks.

Mr MacAdam agreed. He suggested that a legally qualified person be appointed in strategic areas, with provision for a grievance procedure.

Mr Kleynhans told the committee that currently there is a Witness Protection Unit in each province. The telephone number of the Provincial Commissioner is displayed in all Police Stations and he can also be contacted through the investigating officer or prosecutor on the case. The Police may carry a witness for 2 weeks pending a decision from the Attorney General. Mr Kleynhans remarked that this works well in all provinces except Kwazulu Natal (KZN). In other provinces the Attorney General responds within no more than a week, while in KZN it sometimes takes as long as 18 months to elicit a response. This meant that the Witness Protection Unit is forced to act outside the law, carrying people for much longer than 2 weeks.

Asked by the Chairperson what the problem is in KZN, Mr Kleynhans responded that only 1 Deputy-Attorney General is assigned to deal with Witness Protection matters, over and above his own caseload, although KZN accounts for 60% of all protected persons.

Mr de Lange (Chairperson - ANC) suggested that this made the Criminal Justice System blameworthy in the KZN situation.

Mr Hofmeyr (ANC) expressed concern that this amounted to unauthorised expenditure.

Mr Kleynhans responded that he has recently been audited and that this matter would undoubtedly arise. He pointed out that direct expenses for a family whom he had kept on the programme for 18 months, only to then be told that the person was not a witness, but an informer, amounted to R500 000.

Mr de Lange (Chairperson - ANC) asked the Committee Clerk to arrange for Advocate de Klerk, the Deputy-Attorney General responsible for Witness Protection in KZN, to appear before the committee to explain the delays.

Mr de Lange (Chairperson - ANC) suggested that although he is anti-panel, it might be better to use the Attorney General’s office than to have a person employed exclusively by the Witness Protection Unit.

Mr MacAdam responded that the 1996 UN Guidelines advised that Attorneys General should not decide because they have a vested interest in the case. He suggests that senior legal practitioners (Magistrates etc.) would be more appropriate. Mr MacAdam further pointed out that while the initial decision may be a simple matter, constant evaluation was required as well as e.g. attendance at bail applications of people threatening the witness. This is not happening at present.

Mr Kleynhans felt that the numbers of people currently being protected did not justify the establishment of full-time Witness Protection Officers.

Mr Hofmeyr (ANC) asked the Law Advisor to look into the cost implications of the two models.

Mr Hofmeyr also asked whether the term "witness" includes informers and whether the latter are protected in terms of the Act.

Mr Kleynhans responded that currently informers are outside the scope of the Bill. The Attorney General will not accept such people onto the programme as they are not witnesses. Currently there are 700 people on the programme, which is overstretched.

Mr MacAdam added that the Police are generally very reluctant to give the names of their informers. These, he said, should be dealt with within the informer policy of the SAPS, which is also better financed than the Witness Protection programme.

Mr de Lange (Chairperson - ANC) suggested that the scope of s6(1) be widened to include anyone who may be required to give evidence, thereby giving the Director General discretion to bring someone he believes worthy of protection into the programme.

Clause 5
The Committee looked at all submissions made in the Summary of Submissions on the Witness Protection and Services Bill [B9-98], all of which had previously been dealt with or were now no longer applicable.

Clause 6
The Committee accepted the suggestion of the Attorney General (Port Elizabeth) that where a person could not apply personally, a member of the persons household should be able to do so.

Mr de Lange (Chairperson - ANC) pointed out in respect of the Human Rights Committee’s suggestion that prisoners be allowed to apply through the social worker that this was acceptable, although the question was not through whom applications could be made, but who made the decision.

As far as the HRC’s suggestion that a curator be appointed in the case of minors, Mr Kleynhans pointed out that at present there is a minor on the programme and that currently use is made of Welfare services.

Mr de Lange (Chairperson - ANC) suggested that because the appointment of a curator would be time consuming provision be made that the child be taken into protection and as soon as possible thereafter a curator be appointed.

Clause 7
The Committee considered the Attorney General (Cape Town)’s submission that s7(3) did not adequately address the question of relocation.

Mr MacAdam pointed out that this is the most costly and difficult area of Witness Protection.

Mr de Lange (Chairperson - ANC) suggested that this be dealt with in a separate section. He also agreed that s7(4) should be amended to require consultation with the Attorney General if the discharge of a witness may undermine an impending prosecution. On the question of summary discharge of witnesses, Mr de Lange asked whether it was ever necessary to discharge immediately a person (i.e. without written notice).
Mr MacAdam said that they had found in KZN that people had entered the programme with the sole purpose of seeing who the other witnesses were.

Mr de Lange (Chairperson - ANC) suggested that s7(4) be extended to authorise anyone designated in writing by the Director, as well as adding the endangerment of others’ lives and jeopardising the programme as a ground for discharge from the programme.

The Committee agreed generally with the suggestions made by the HRC, but felt that these were matters which should be dealt with in the Regulations. On the question of whether witnesses should be discharged immediately on the conclusion of the case, Mr Kleynhans pointed out that this is required by the Criminal Procedure Act. Currently, however the programme keeps people on for up to 6 weeks. The Committee agreed that the s7(5) should be amended to give the Director some discretion as to when the witness should be discharged.

Mr de Lange (Chairperson - ANC) considered clause 3 of the Births and Deaths Registration Amendment Bill [B42-98] and suggested that it was too vague, especially in its reference to "a witness protection plan". He asked Mr Labuschagne to write an urgent letter in this respect to the Social Services Select Committee who are dealing with this Bill. The section makes provision that where a change of name is effected for someone within the Witness Protection Programme, this will not be advertised in the Government Gazette.

Clause 8
The committee again felt that most suggestions which remained relevant could be dealt with in the regulations.

Clause 9
The committee considered the question of outstanding civil judgements.

Mr MacAdam pointed out that at the TRC such proceedings are not suspended, but the TRC office is named as the office for serving of all papers. This prevents the incurring of damages in respect of suspended proceedings. In other jurisdictions this is also the case with witnesses being brought to court under protection. The TRC requires witnesses to indicate at the outset whether they have any civil or criminal litigation outstanding; they then contact the relevant attorneys.

Mr Kleynhans added that witnesses also incur civil liabilities while on the programme.

Ms Jana pointed out that in such cases prescription does not run because it is impossible to bring an action. Ms Ngwane (ANC) was nonetheless concerned that the interests of third parties would be prejudiced, e.g. where maintenance was to be paid. The Law Advisor was asked to look into this matter.

The meeting closed for lunch.