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JUSTICE PORTFOLIO COMMITTEE
26 August 1998
WITNESS PROTECTION BILL: DISCUSSION
Documents handed out
Witness Protection Bill
Draft 5 Witness Protection & Services Bill (WIT 18)
The chairperson was not happy with the phrase "attached to the office" in the clause and wants Mr Labuschagne, the law advisor, to change the word "attached" to a more suitable word. The chairperson wants the definition of "office" to be all-embracing and therefore include "branch office" in the definitions section of the Bill. Ms Camerer (NP) felt that the term "interested functionary" should be changed to something more suitable and therefore Mr Labuschagne was asked to review this term.
The chairperson feels that the discretion given to the Director in the clause should be given to the witness protection officer as well. Reason being: that it would be a time-saving mechanism to give the witness protection officer the discretion as well. Mr Labuschagne was therefore asked to redraft the clause in accordance with what is said above.
Clause 7 (4)
Ms Camerer felt that the "registrar" as used in the clause should not be notified as prescribed by the clause because the object of the clause is secrecy. The committee accepted his view.
The chairperson felt that children (minors) under the age of 14 hears, who are:
children whose parents cannot be traced or
children whose parents commit crimes against them for example, molestation, should not need the consent of such parents. The chairperson therefore felt that Mr Labuschagne should add the above categories of minors to the clause and indicate that such minors need not get the consent of their parents to make "application for protection".
Mr Labuschagne explained to the committee why the word applicant was inserted in s7(5)(e), i.e. as the provision now stands some person other than the witness may apply for protection on his or her behalf. The committee agreed that this is a better approach. Moreover, the chairperson felt that the clauses or provisions dealing with minors should be put into a separate section because of its extensiveness. Mr Labuschagne agreed to do this.
The definitions of "protection" and "proceedings" had changed and therefore the changes in this provision are of a consequential nature.
S 8(1) these are the consequential changes as well.
S 8(2): It was felt by Mr O’Malley (IFP) that the proviso here should be simplified because as it stands now it is complicated and reading it is difficult. The chairperson felt that the "protection agreement" referred to in the provision should be made on order of the court because it would alleviate the problem one would have with a minor not having the capacity to enter into legal transactions or agreements. Mr Solomon (ANC) suggested that the definition of "protection" and "temporary protection" should be split up in the definitions section in the sense that "protection" should exclude "temporary protection". He feels that this approach would simplify the Bill. Mr Labuschagne was asked to make the necessary amendments.
Clause 8 (3)
Mr Labuschagne explained that this provision simply deals with the content of the "protection agreement" and is in many respects similar to the Canadian and Australian provisions. It was suggested by the chairperson that an s8(3) should be inserted in order to make the provision seem less bulky.
The chairperson felt that the regulations to the Bill should with respect to this provision deal with a situation where the parties agree that the witness should be kept in a place other than a place of safety. It was also noted that "place of safety" is not prescribed in this provision.
9(1) – consequential changes – no comment
9(2) Mr Labuschagne explained that in the regulations to the Bill, the role of the witness investigating officer will also be built in and therefore the Director’s discretion here will be watered down – this is a safety mechanism.
9(3) - No comment
9(4) – here only the "age" provision was added i.e. 14, 16, 21 years.
NB: with regard to 9(3) it was felt by Ms Camerer that the provisions should not only apply where, "the Director is of the opinion" but it should also apply in instances where the witness upon request feels that his/her safety is still sufficiently threatened to remain in the place of safety for a longer period. The committee accepted her view and Mr Labuschange was asked to make the necessary changes.
9(4) – No comment
9(5) – No comment
9(6) – Mr Labuschagne explained that this provision is a reflection of the Canadian provision. But Ms Jana (ANC) raised two issues firstly, how would a minor make a "written representation" to the Director and secondly, how would it be ensured that the Director would follow the "notification procedure" in the provision. Mr Labuschagne responded by saying that the applicant or "protected person" has an inherent right of review by the Minister, and if the Director fails to act in compliance with the provision, the protected person may exercise this right and a "minor" may be assisted by some person acting on his/her behalf.
Mr O’Malley felt that the Director should not have a discretion to "discharge" in this regard. The chairperson agreed and suggested that the word "may" should be replaced with the word "must " in the provision. He said that the inclusion of the word "must" would not render the approach an inflexible one and furthermore, the word "opinion" in the provision should be changed to "satisfied".
Mr Mzizi's concern was that the witness protection officer is by-passed in this provision. Mr Labuschagne responded that in practice, it would be the witness protection officer who furnishes the Director with the information required by the provision for it to become operative therefore the witness protection officer is not by-passed here.
Mr Labuschagne explained to the committee that neither the USA, Canadia or Australia has a separate provision or clause dealing with "relocation of protected person" in their respective Acts. He therefore posed the question to the committee whether clause 10 should not rather be provided for in the Regulations to the Bill. He further added that clause 11 (change of identity of the protected person) is also not specifically dealt with in the mentioned Acts but rather in the Regulations to the above mentioned Acts. The chairperson responded by saying that clause 10 and 11 should be put at the end of the Bill for now. He added that these clauses should eventually be comprehensively dealt with in the Regulations to the Bill and that empowerment clauses should be used in the Bill regarding "change of identity" and "relocation". This would be a cost-saving mechanism.
The chairperson suggested that clause 12(1) should mention 9(6) together with 9(1) and 9(2) but asked Mr Labuschagne to look into the matter. The chairperson feels that this should be a catch all clause. Dr van der Heerden (NP) asked whether a protected person’s identity could be changed to his original identity. The chairperson responded: the Regulations to the Bill will provide for a review procedure in this regard. Mr Solomon raised a concern regarding the "seven days" in 12(2). He said that it may happen that the Minister is out of the Republic during this period and thus will be unable to "confirm the decision" within the time period prescribed by the provision. This would mean that the Justice Department could be sued and what makes the situation even more problematic is the fact that the word "must" is used. Mr Mzizi responded by suggesting that the provision should be changed to "seven days or when Minister has seen the document". Mr Labuschagne was asked to look into this matter.
Mr Labuschagne explained that two options are open to the committee:
to suspend the proceeding, in which case the Prescription Act 68 of 1969 will come into operation and the claim may prescribe, or
In line with USA approach, continue the proceedings but not disclose the identity of the "protected person" until the proceedings are finalised. He added further, that the Canadian and Australian Acts do not have a provision of this nature. He also referred the committee to the document, WIT 15, in an effort to get clarity on the matter. The chairperson asked Mr Labuschagne to draft a clause giving effect to the USA approach, but the committee agreed that clause 13 needs further consideration.
To be put under the "minor clause"
15(1) – consequential changes
The chairperson was not happy with the word "attached" in 15(10 and he asked Mr Labuschagne to change it to something more suitable.
15(2) Mr Labuschagne explained that "or in the course of this Act" broadens the scope of this provision. Mr van der Heerden wanted to know whether the form " I, A B , hereby …" should rather be in the regulations. Mr Labuschagne responded by saying that the idea was copied from the Truth Commission Act and that it is best to keep it in the Bill seeing that it is a confidence clause. The chairperson suggested that 15 (2) (a) should be split up and that the second part of 15(2) (a) should be made a separate provision i.e. "and no person who came into possession … to any other person ".
The chairperson asked Mr Labuschagne to have regard to the Australian provision in order to further streamline this provision.
Mr Solomon raised a concern regarding 18(2) "subject to any conditions determined by the donor". He made an example that a gangster may be the donor and may impose conditions which are contrary to the spirit of the Bill. What is one to do in such a situation? The chairperson responded by saying that the provision should be changed to read, "subject to the purposes of witness protection as prescribed". Mr Labuschagne was asked to look into the matter.