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JUSTICE PORTFOLIO COMMITTEE AND SECURITY & JUSTICE SELECT COMMITTEE: JOINT MEETING
30 September 1998
PREVENTION OF ORGANISED CRIME BILL [B118-98]: HEARINGS
Documents handed out:
Centre for Applied Legal Studies: Comments on B109-98
Centre for Applied Legal Studies: Comments on B110-98
NADEL: Submission on B110-98
The Banking Council: Submission on B118-98
Western Cape Anti-Crime Forum
Fifth draft of Domestic Violence Bill
Submissions were heard on the Recognition of Customary Marriages Bill, B110-98, the Amendment of Customary Law Bill, B109-98 and the Prevention of Organised Crime Bill, B118-98.
The committee also discussed the fifth draft of the Domestic Violence Bill, B75-98.
The Justice Portfolio Committee will meet on the 15 October to discuss the Recognition of Customary Marriages Bill, B110-98, the Amendment of Customary Law Bill, B109-98, the Prevention of Organised Crime Bill, B118-98, the Maintenance Bill, B72-98, the Domestic Violence Bill, B75-98, the Judicial Matters Bill, B30-98 as well as ratifying six international agreements.
The Security & Justice Select Committee will meet next on the 15 and 16 October.
National Association of Democratic Lawyers (B110-98)
Ms Nyman welcomed the Bill for promoting African women's interests, but made critical comments on (1) the short notice for submissions (2) the Bill being applicable to customary marriages entered by Africans only, not providing protection for Indians, Muslim etc. (3) the Bill should protect marriages commenced not only after the passing of it, but also those entered into up to now, cf. section 7(1) and (2).
On (1), chair De Lange replied that the Bill had been around for discussion for longer than the two weeks Ms Nyman referred to.
On (3), he argued that the no law, according to the constitutional court, is retrospectively applicable. Laws passed in the past cannot be said to be illegal, only from now on. Therefore, acts made then must be considered within the legal framework of the time.
Ms Nyman responded that such lack of retrospective applicability is unacceptable, since the constitution should be superior to laws from the past, so that apartheid conditions are not sustained. Ms Ali clarified that NADEL's point was to protect people whose present situation is legally determined by past actions.
Ms Nyman's next point was agreed upon by De Lange, namely that paragraph 4(4)(a) should be deleted: any accidental third party should not be given the power to register a marriage.
The NADEL input continued:
8(4)(a) 'legal representative' and 'suitably qualified person' should be defined. Specific reference should be made to the legal aid board.
8(7)(c) What is meant by 'any payment made in accordance with customary law'? Most would think of lobola. However, this should not be taken into account by the court for maintenance arrangements since the wife's family and not the wife receives the payment of lobola.
3(1)(a)(ii) 'the prospective spouses must both consent to be married': this consent and decision must be informed. The partners should know about the consequences of their decision. Now, women have little choice on whether or not to enter a polygamous marriage.
Chairperson de Lange: How do you propose to enforce this, pre- and post-marriage?
NADEL: Give the magistrate the responsibility to inform.
Chairperson de Lange: What if the magistrate comes to the conclusion that parties are not informed? Can the magistrate prohibit them from marrying?
NADEL: No. NADEL wants a redraft where provision for information is included.
Questions and comments by committee members:
Mr N Mahlangu (ANC): (a) The consequences of previous laws should be regulated. Do you have a practical solution to the problem of retrospective applicability? (b) On consent: how can people understand all the consequences? How to check whether they know or not? Is this necessary, as the custom generally is well known to people?
Mr M Mzizi (IFP): Why reform lobola when it actually values women? Section 6 on equal status of spouses is problematic! How can the wife be as responsible as the man?
Ms D Jana (ANC): Clarify solutions to the question on retrospective applicability, through redrafting 7(1) and (2).
Mr Mahlangu: Lobola should be mentioned in 8(7)(c) in order to avoid misinterpretation.
Mr N Mashile (ANC/NCOP representative): This custom is an affirmative, traditional practice that should not be Christianised. A customary marriage is done with the support of parents on each side. Why are they not mentioned in the Bill?
NADEL is not opposed to African customs and traditions such as lobola and polygamy, only to those aspects of it which discriminate women. NADEL's intention is therefore to protect women within the traditional institutions, especially with regard to property and children, not to abolish those institutions altogether. The legal framework on retrospective applicability will be investigated.
Western Cape Anti-Crime Forum (B118-98, Prevention of Organised Crime Bill)
WCACF was represented by Ms VASA and Mr KLUETER.
Ms Vasa's initial remarks on short notice was met by De Lange's assertion that submissions can still be made up to October 15, when the committee will discuss the Bill.
Ms Vasa siad that the Bill is powerless unless it has community support. This required the trust of community people in the police, magistrates and courts which this Bill must not break down. It is, though, in danger of doing this since its broadness allows it to be exploited and abused by state actors. Therefore, it is especially important that it grants protection to witnesses, and to a greater extent, to victims. Mr Klueter said that a more detailed submission would be made by October 15.
Questions and comments by committee members:
The chairperson, Mr J de Lange commented that the main focus of this Bill is not crime generally, but specifically gangs and syndicates. A weakness of it is that it excludes the issue of disclosure. In order to disrupt the gangs, one should start with their membership, forbidding people to belong to gangs. Protection of witnesses will very soon be dealt with by the NCOP Security and Justice committee. An Intimidation Act exists, but has only been used against anti-apartheid activists and seems to be forgotten by the new South Africa.
Ms Vasa: Will there be a will to enforce this act?
Chair M Moosa said that implementation is everything. One knows that young people join gangs to get protection. The Bill will give the police the right to zone in on members. But despite the Human Rights Committee's claim that this leads to criminalisation of the whole community, we stand by the 'broken window' approach: beginning with capturing the one who breaks the last window of a looted house. What does the WCACF think of this approach?
Ms Vasa: We have to start somewhere, since the communities concerned are desperate.
Mr Klueter: Apartheid, poverty and unemployment should not be blamed for all that is going wrong.
Imam G Solomon (ANC): How should gang membership be defined?
Mr M Mzizi: How can abuse of the Bill be prevented? How can perpetrators be spotted?
Ms Vasa: Gangs are harassing the neighbourhood. The Bill should empower the authorities to deal with this.
Mr Klueter: The Cape Flats is Americanised. There is a danger that the police will identify gang members based on clothing.
Ms Vasa: What kind of police training does the Bill envisage? For instance, how will arrests be made?
Mr M Moosa asked if the WCACF could study the Bill further with a view to its practical implementation?
Mr De Lange said that Clause 42 in chapter 5 identifies clearly the legitimate grounds for arrest, preventing the police from attacking people with a certain style of clothing or who they 'think' are gang members. People have commented too loosely on the Bill, without reading it properly.
Mr R Radue (NP): Both ordinary and specialised police forces can and will be applied in the implementation of the Bill.
National Association of Democratic Lawyers (B118-98)
NADEL's views were introduced by Mr Blake, who made the following points.
(1) Too short notice for submissions to be made.
(2) Unacceptable timing of Bill, probably made in ANC's perspective of vote-catching before the May 1999 elections.
(3) The Bill fails to address the root causes of organised crime, namely structural socio-economic conditions of the perpetrators. That is why it has to be tackled comprehensively, beyond police and courts. This point becomes even clearer in the light of international trends, which also reveal crime increase in regions of economic turbulence and devastation. In South Africa, many youth do not have a choice but to join the gangs. On this basis, we easily see that it can come to function as an attack on black working class youth whose constitutional rights may be violated: the right to privacy, to freedom of association, etc. The Bill fails to distinguish between upper and lower/mass levels of group acts. Why is there a need for extraordinary measures? Why is common law inadequate? Where is the broad public discussion on the implications of the Bill?
(4) Due to lacking credibility of the SA police, its increase in power for which the Bill provides will exacerbate rather than solve the problems. At present, the police already uses its power to harass blacks, young people, women and minorities. In this light, we see that the wide definitions of crime, gangs etc. will be used by the police so that enforcement of the Bill will become arbitrary.
(5) Advice from the United States for drafting the Bill is inadequate for South Africa, especially due to the special role of the police here.
(6) On these grounds, NADEL is of the opinion that the Bill should be withdrawn, in order to discuss the issues and their implementation in public.
Questions and comments by committee members:
Mr J De Lange: If unconstitutionality is suggested, concrete examples of this are required.
Ms D Jana (ANC): Are your views, for instance on withdrawal of the Bill, really representative of the entire, national NADEL body?
Mr M Moosa (ANC): You are right that the law and order approach will not necessarily lead to long-term results. But, what do you propose as short-term solutions for dealing with intolerable levels of crime? When people start to question the human rights culture because victims are not protected? Are you suggesting that since socio-economic conditions cause crime, we can skip handling it in the short run? Will not a blind eye on petty crime increase petty crime?
Mr L Landers (ANC): In contrast to WCACF's mature submission, yours seem to be marked by panic. The only point you raise is that we should deal with socio-economic factors. Can you concretise short-term measures as well?
Mr M Mzizi (IFP): Why is the minister's credibility doubted in the submission?
Imam G Solomon (ANC): How can NADEL dismiss the entire Bill only because it fails to deal with the socio-economic roots of crime?
Ms L Ngwane (ANC): Are short-term informal gangs ok? They are the big fish of tomorrow!
Mr R Radue (NP/NCOP rep.): Is NADEL aware of the force of international criminal networks available for SA syndicates?
Mr M Surty (ANC/NCOP rep.): The Bill is targeted not at gangs, but at their criminal activities. There is no analytical approach in NADEL's submission, for instance, on unconstitutionality. Do you think that rights are holy and cannot be limited under any circumstance?
Mr A Nel (ANC): Is your submission based on the Bill or on media writings on it?
Ms Nyman: It goes without saying that the submission is a national one by NADEL, and that it is based on close study of the Bill. NADEL rejects the Bill in total in defence of human rights. We are concerned about the attitudes of certain MPs as expressed by their comments, for example, about resentment towards the Minister of Justice. Actually, Dullah Omar is one of the founding members of NADEL.
Mr Blake: On crime, there are more questions than answers. But we have to address the question of how the communities will react to the Bill when most young men are involved in gang activities. And what does the committee say about the relationship between socio-economic conditions and crime?
Ms Nyman: The problem is that the police do not want to arrest the criminals, even if they know who they are.
In conclusion the chairperson, Mr De Lange, stated that
1. Both the Human Rights Committee and NADEL ignore section 42, which shows that the Bill does not criminalise all gang activity.
2. The police have been asked to come up with an implementation plan.
3. Even if many MPs are NADEL members, they are now speaking critically as parliamentarians. If you want, you may very well ask whether the ANC has turned right-wing.
4. This is not a vote-catching issue. If it had been, opposition parties would have tried to capitalise on it. The Bill has broad support in the committee, but details are still to be dealt with. Therefore, you are welcome to submit more specific comments up to October 15.
Banking Council of South Africa: B118-98, Prevention of Organised Crime Bill
Mr S Grobler was the Banking Council's spokesperson. He focussed on the following issues (the numbering refers to BC's own submission paragraphs):
2.3 The definition of a person guilty of an offence is too wide, since parts of it can be applied to normal commmercial activities of a bank. Section 2(1) must therefore be amended.
2.7 Due to the time-consuming procedure of getting and going through the Government gazettes, the 30 day period within which to apply to the court should be extended to 60 days.
2.15.1 The wording should be clearer, it is too vague and could suggest legal businesspeople as criminals.
2.15.2 The requirement for a person who suspects another of providing 'all available information' is costly in human and financial terms, especially when the suspicion is unclear and much information must be sought to clarify it. Therefore, some provision for such costs must be made.
2.17.1 A banker can only be expected to seek information 'within the normal reasonable course of his or her business transactions'. This should be amended.
2.17.2 The reference to a 'reasonably diligent and vigilant person' and to 'due care' must be linked to actual contexts: the criminal makes his business in the rush hours, when bankers have difficulties in remaining diligent, vigilant and demonstrating due care.
Questions and comments by committee members:
Mr Radue: How does this Bill connect with the Proceeds of Crime act?
Mr Surty: What do you propose as a definition of organised crime?
Ms Jana: What role do you envisage for the police?
Mr Moosa: How does one target businesses colluding with criminal syndicates?
The Banking Council's response:
There are pros and cons of linking this Bill with the Proceeds of Crime Act. The importance of money laundering legislation should be emphasised for Bill to function. The cost of information gathering could be reimbursed from the forfeiture fund.
Centre for Applied Legal Studies: B109-98 and B110-98
Ms L Mbatha presented submissions on the Recognition of Customary Marriages Bill, B110-98 and the Amendment of Customary Law of Succession Bill, B109-98. (See documents). The committee members were very interested in her comments which were based on grassroots research in three provinces. The chairperson thanked her for her balanced and challenging input.
Ms Mbatha felt that the second bill as it stood would be problematic and cause much dissension on the ground. The Bill would face much opposition as people are not familiar with the provisions of intestate succession. Currently, inheritance of property is fused with succession to the status as head of the family. In her research she found that communities were not opposed to separating status from property. Succession should continue to apply to African male heirs only but that inheritance to property should be made accessible to women.
Questions and comments by committee members:
After listening to the submissions, the chairperson said that he was concerned about the consequences on the ground if the Amendment of Customary Law of Succession Bill was passed. He did not know where to go with these bills from here. He hoped that with input from the South African Law Commission on 15 October 1998, some clarity would be reached.
Mr N Mahlangu (ANC) said he agreed that current inheritance practices were unfair in that they were discriminatory and exclusive. He pointed out that there was another level of ownership, kraal property. Ms Mbatha responded that no women inherited kraal property. This inheritance was enjoyed by men. She believes that only two generations down the line one might she changes to this practice.
Mr M Mzizi (IFP) pointed out that currently women are entitled to have right of access to property though not right of ownership. Ms Mbatha agreed that women have right of access but that the obligation on the heir to allow women to remain in the family accommodation is often not fulfilled. The right of access should be extended to right of ownership. This has to be implemented under the new constitution.
Mr R Radue (NP) found Ms Mbatha's distinction between formal customary law and living customary law very useful. He suggested that in the face of complete rejection of B109-98 by traditional leaders, that an interim phase should be introduced that would allow the status quo to remain for a period of five to ten years while communities become used to the new legislation. She agreed that there should be transitional arrangements regarding division of property while moving from one system to another as one needed time to prepare communities who were not presently ready to accept this Bill.
Ms L Ngwane (ANC) was concerned that the rural poor are unused to formal courts. If the provisions in the new bill were too inconvenient, how widely would it be used?
In answer to a query on polygyny, Ms Mbatha said that this is not practised nowadays but rather serial monogamy where a woman is dumped and the man moves on to another spouse. She believes the Bill will encourage cohabitation because of its cumbersome procedure for entering polygyny. From their research, women are against the legal recognition of polygyny.
Imam G Solomons pointed out that CALS and NADEL differed regarding the provisions of Clause 4 (4) of the Recognition of Customary Marriages Bill which permits interested parties to inquire of the registering official if a marriage has been registered. NADEL is against this provision as "any person having an interest in the matter" is too wide whereas CALS welcomes it. Ms Mbatha responded that women long for access to civil law marriage certificates. The Bill permits women, or people acting on her behalf, to initiate registration without men who, according to research, often delay the registration of a marriage.
In conclusion Ms Mbatha said that B109-98 was rushing something that is too complicated too rush. Succession is not as simple under customary law as it is under Western law. The issue is not property as there is agreement about the need for fairness here. The issue is succession to the status as head of the family. Agreement needs to be reached on the power to discharge the responsibilities that go with status. This can devolve to the male heir and the person inheriting the property will provide the heir with the resources to execute these responsibilities (such as funeral ceremonies). If one can divide the two concepts (property and succession), "we will get there in time".
Domestic Violence Bill: deliberations
Mr J de Lange, departmental law advisor, referred to Draft 5 of the Bill while pointing out further proposed amendments to the Bill. He went through Clauses 1 to 6.
With regard to Clause 4 (5), the committee chose the first option: "may suffer imminent harm" in preference to "there is a risk of imminent harm" as the second option appeared tautologous:
4 (5) The application referred to in subsection (1) may be brought outside ordinary court hours or on a day which is not an ordinary court day, if the court is satisfied that the [victim] complainant may suffer imminent harm/there is a risk of imminent harm to the [victim] complainant.
The proposed removal of Clause 6 (3) to (11) generated much discussion:
[(3) The respondent must, not less than 10 days before the date of hearing, file with the clerk of the court an answering affidavit and any supporting affidavits, showing cause as to why the interim protection order should not be confirmed.
(4) A copy of the respondent's answering affidavit and any supporting affidavits must forthwith be served on the applicant.
(5) The applicant, upon receipt of the answering affidavit and any supporting affidavits may, before the date of the hearing, file a replying affidavit together with any supporting affidavits with the clerk of the court, in which must be stated the reasons why the interim protection order should be confirmed.
(6) A copy of the applicant's replying affidavit and any supporting affidavits must forthwith be served on the respondent.
(7) on the date of the hearing, the clerk of the court must submit to the court the—
(a) application for the interim protection order;
(b) interim protection order granted;
(c) respondent's answering affidavit and any supporting affidavits; and
(d) applicant's replying affidavit and any supporting affidavits.
(8) At the hearing of the matter, the court may—
(a) decide the matter on the papers in the absence of either or both of the parties; and
(b) refer the matter for oral evidence.
(9) The clerk of the court must forthwith notify both parties if the matter has been referred for oral evidence and must arrange a date that is suitable to both parties.
(10) At the conclusion of the hearing in terms of subsection 8(a) or (b) the court—
(a) serve the original final order referred to in subsections (1) or (10)(b) on the respondent;
(b) serve a certified copy of the final order referred to in subsections (1) or (10)(b) on the applicant.
(11) If the interim protection order is ratified or amended, the clerk of the court must forward certified copies of the final order and of the warrant of arrest contemplated in section 11(1)(a) to the police station of the applicant's choice.]
Mr de Lange and Ms Ngwane wanted the provision for responding affidavits excised. Messrs Moosa and Surty and Ms Jana were for the retention of this provision. Mr de Lange feared that this provision would introduce a long, drawn-out affidavit process that would delay the process and force each respondent to get a lawyer in order to make a written affidavit thus increasing costs.
On the other hand, Mr Moosa believed that the opportunity to respond in writing can expedite matters in terms of clarity as well as giving respondents a choice.
Ms Ngwane said that the practising lawyers in the committee needed to disabuse themselves of procedures. She reminded them that the aim of the Bill was to deal with the majority of South Africans and not to cater for the rich and educated. She felt that due process is served either way as the Bill does not disallow responding affidavits - it does not say that there cannot be a affidavit. The message to the court would be that we want a speedy process.
Due to the lateness of the hour, this issue was not finalised but held over to the next meeting.