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JUSTICE PORTFOLIO COMMITTEE
14 September 1998
WITNESS PROTECTION BILL [B109-98]: DISCUSSION
Clause by clause deliberations on the Witness Protection Bill
(Clauses 1 - 10)
The words 'and services' has been removed from the long title of the Bill, as it has been decided to make amendments to the Criminal Procedure Act in respect of services.
Mr de Lange (Chairperson - ANC) pointed to a number of minor changes in the definitions; in particular s1(viii)(b) has been changed to prevent witnesses from going directly to the presiding officer, by means of allowing for the presiding officer to delegate authority to investigate potential witnesses.
Sub (ix) defining 'law enforcement officer' has been included (expressly included members of the NIA and Correctional Services.
Mr Mhlangu (IFP) asked whether traffic officers would be included under this definition, as they should ultimately be given the authority to arrest people.
Mr Labuschagne (Law Advisor) answered that anybody who had the power to enforce the law was included, including traffic officers and fauna and flora officers.
Mr de Lange (Chairperson - ANC) added that the only reference to law enforcement officers in terms of the Bill is where such a person has committed a crime. Given their privileged position, it was felt that a witness in such a case required additional protection.
No material changes.
Clause 3 has been amended so as to clearly show that people seconded to the Witness Protection Unit fall under the Witness Protection Unit's line of command.
All references to secondment have been removed, as these were felt to be superfluous.
Mr Hofmeyr (ANC) expressed concern about the requirement in (b)(i) for lists of available people to be submitted, asking whether it was not a little harsh. Mr de Lange replied that it only applied where an agreement already existed and as such should be read in conjunction with (v) and (vi).
Mr Mahlangu (IFP) asked what criteria would be used by the Director in terms of sub(b)(iii) to turn down someone on the list. The Chair replied that there were no criteria as it is a voluntary arrangement.
(a) has been amended to include temporary protection and in terms of (f), the Minister is empowered to designate places to be utilised as places of safety.
The Chair pointed out that Witness Protection Officers are civil servants and as such are governed by the appropriate laws and regulations, therefore everything related to civil servants has been removed. Furthermore, the section has been amended to show clearly that WP Officers are controlled on the ground and not in the first instance from Pretoria.
Mr Hofmeyr (ANC) asked whether the WP Officers all have to be full-time employees, as there might be areas where this was not required.
Mr de Lange (Chairperson - ANC) replied that if the Minister felt that it was not necessary in a certain area to have an office, he could still post someone there under the control of the area office. It is therefore important to make the defined areas relatively large. In terms of 5(4) the WP Officer may assign people to assist him/ her.
No material changes discussed.
In terms of s7(2)(b) an application for protection of a minor may be made by or on behalf of a minor without parents' or guardian's consent.
s8(c) has been changed to cover situations where an application is anticipated e.g. where the person is unconscious or out of the country.
In s8(ii) reference to minors under 16 years has been deleted. S12 now deals with minors as a category. S8(c)(iii) provides for the Director to override parental refusal.
No material changes discussed.
10(c) now authorises the Director to make interim arrangements in respect of the protection of any witness.
During the afternoon session the committee discussed the various proposed amendments to the Bill. Most of the amendments were agreed to by all the members after discussion and sometimes slight changes. The law advisor, Mr. Labuschagne, was asked to look into the incorporation of temporary protected persons in some of the sections where it had not been included previously. Whether suspension should be listed as a possible order that can be made by court in terms of section 15 was deliberated but kept open for later discussion.
The chairperson informed the committee that there are currently two options available under Section 15(2). The first option states that the court may suspend the court case. A lot of concerns arise from this in regard to the effect of such a suspension (for example, how long will it take). The second option does not refer to the suspension and allows the court the power to make any order it deem fit when the court finds that a person’s life might be in danger.
Mr Hofmeyr (ANC) proposed the word "may" be replaced by "must" in option B in order to impose a duty on the judicial officer to always make a decision. According to Ms Jana (ANC) it should then read that the court must make an order when the court finds that the person is in danger (and not when it seems to the court that he might be in danger) Mr Groenewald (FF) did not see the necessity of any change, because the judge will look at every situation and then decide whether an order is required. Most of the members of the committee agreed with Mr Groenewald.
Mr Hofmeyr said that he would rather support an unchanged option B than a change imposing a duty on the judicial officer to make an order, but where this duty only exists when the court decides that the person is definitely in danger.
Mr Hofmeyr further suggested that option B be changed in order to clearly state that the court may make any order, including a suspension order. His concern is that the judges do not have the implicit authority to make a suspension order and that they have to be given this authority via legislation. According to the chairperson the inclusion of suspension might again give rise to the problems with suspension discussed earlier by the commission. They intentionally tried to avoid these problems by not referring to suspension particularly. Mr Hofmeyr then suggested that the word "postponement" be used rather than suspension. Mr Groenewald referred to the submission of the Cape Bar Society, where they disagreed with the referral to suspension in this section. The committee agreed to decide at a later stage on whether to include a reference to suspension or postponement in option B.
With regard to Section 15 (1) Ms Ngwane (ANC) suggested that it was unnecessary to specifically refer to situations where placement under witness protection was not yet given and situations where it has been given. According to her (a) and (b) should be deleted. Mr Labuschagne said he included it only to make the situation more clear and that it could be deleted as long as it includes situations where placement was given.
The chairperson summarised this section. According to Mr O’Malley (IFP) section 17(5) does not cover temporary protected persons. Mr De Lange requested Mr Labuschagne to change it in order to provide for temporary protected persons.
Mr Hofmeyr drew the committee’s attention to the fact that the words "interested functionary" in the second last line of Section 18 is a wrong choice of words. Mr Labuschagne agreed and suggested that it be changed to "presiding officer".
According to the chairperson (d) might be covered in (a),(b) or (c), but was included separately, because it is considered as a very important aspect.
According to Mr Hofmeyr the problem with this section is that it does not cover the person under temporary protection and also does not include the witness. He raised the problem of a person who receives a subpoena to appear before court as a witness. Mr Labuschagne was of the opinion that in terms of Section 15(4) a subpoena of a protected witness has to be delivered to the office of the director. If a witness then has to testify the director will know about it and would take it further. Mr Hofmeyr however said that the witness and director cannot just ignore a subpoena and they will have to act upon it. The chairperson suggested that the words "or witness or a person under temporary protection" be included.
On the issue of expanding some of the latter clauses in the Bill to cover the person under temporary protection, Mr Labuschagne and Mr Hofmeyr were of the opinion that it would be easier to expand the definition of "Protected Person" (that does not include a person under temporary protection) in order to state that a protected person will include a person under temporary protection in the sections listed. The chairperson was however reluctant to agree with yet another change to the definition of "protected person".
According to the chairperson the Constitution of the country applies to this section in that the agreements entered into between South Africa and other countries in terms of this Bill will have to be disclosed in parliament. This may defeat the object of confidentiality. He suggested that this section of the Bill be drafted as neutrally as possible in order to side-step the application of the Constitution, but that it should be accepted if the Constitution does apply in future.
Mr Hofmeyr agreed that the Constitution would apply, but that it would only mean that the general agreement between two countries should be tabled in Parliament and not the specific agreements dealing with the protection of specific persons.
Mr O’Malley wanted to know why negligence is not included in the description of the crimes listed. The chairperson agreed that it was a valid point. The committee agreed that negligence should be included as part of the mens rea in (a) and (b), but that (d) could only be done willfully. In regard to (c) the chairperson felt that negligence should be included and asked Mr Labuschagne to look into the matter.
The committee discussed Section 22(3) which empowers the magistrate’s court to have jurisdiction in these matters. The possibility of deleting this subsection was mentioned but not decided on.
Mr O’Malley suggested that this section should refer to "the" witness protection program rather than to "a" witness protection program, because it is referring to the global context of witness protection. Mr Labuschagne said that he used "a" because there might be more than one protection program running in the country. The chairperson agreed with Mr O’Malley. According to him this is a concept coming from the USA and deals with the integrity of the global witness protection program/scheme itself. To illustrate how this section would apply, the chairperson used the example of a retired official of the Witness Protection Program that writes a book including sensitive information about the program. Such conduct would undermine the integrity of the Program and would be dealt with by this subsection.
According to the chairperson (l) allows for the Minister to add more offences to the list. The chairperson was of the view that (l) should be made a substantive clause that specifically mentions that if the Minister adds more offences to the list it should be in the form of a regulation published in the Government Gazette. According to Mr Labuschagne the intention is that extra crimes could only be added to the list by means of a regulation published in the Government Gazette.
The chairperson said that this is an amendment to the Criminal Procedure Act that will give the Minister the power to make provision for services to witnesses eg a library and a decent waiting room at court that serves as a way of relaxing the witnesses and treating them more humanely. According to the chairperson the heading should be changed slightly. Mr Labuschagne undertook to change the heading a bit and to provide for some examples.
The chairperson stated that the schedule was changed to give broader witness protection by allowing witness protection in the case of any offence that was committed by a syndicate or a police officer. The schedule is further very open-ended by providing for amendments.
The chairperson also suggested that the amounts mentioned be reduced:
R500 000 reduced to R50 000
R100 000 reduced to R10 000
With regard to drug crimes the amounts should be changed to R10 000 and R5 000 respectively.
Mr O’Malley requested that persons under temporary protection be included in the application of the schedule. The chairperson agreed to this. Mr O’Malley further wanted to know how the schedule is linked with the rest of the Bill. The chairperson said that he had the same concern, but according to the legal advisors it is linked by the definition of "proceedings".