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JUSTICE PORTFOLIO COMMITTEE
22 October 1998
PREVENTION OF ORGANISED CRIME BILL: DISCUSSION
Documents handed out
Prevention of Organised Crime Bill [B118-98]: First Draft
The Justice Committee continued discussion on the Prevention of Organised Crime Bill. A major part of the discussion centred around Sections 63, 64 and 65. Questions were raised by the chairperson on the constitutionality of section 63. The chairperson also was of the opinion that sections 64 and 65 are irrelevant. No decisions were made in regard to these sections, and they will be looked at again, especially with regard to the constitutionality of Section 63.
The committee also agreed to the concept of the Criminal Assets Recovery Fund created in Chapter 7, but concerns were raised about the fact that the current draft (Draft 1) created unwelcome bureaucracy. In the light of this concern the chairperson proposed a much simpler and more streamlined structure.
Section 62 (1)(c)(i)
The chairperson suggested that the reference to High Court should be amended to have wider application by referring to any court. The committee accepted this proposal.
According to the Legal Advisor, Mr Smith, this section refers to all investigations under the Bill and not only civil forfeitures. Mr Hofmeyr agreed that this section has a general application, especially in the light of subsequent clauses 64 & 65.
The chairperson raised his concern about the constitutionality of this clause. According to the Legal Advisor, Mr Nel, a task team had already looked into the constitutionality of these sections and was of the view that it was constitutional. According to the chairperson it might breach the right to privacy. According to Mr Hofmeyr you could argue that the information had been given to one arm of the state (e.g. the Receiver) and was not private anymore. The one arm of the state could give it to another arm of the state. According to Mr De Lange the information however was given to the Receiver for purposes of taxation and nothing else.
According to Mr Hofmeyr the provisions of Section 63 are nearly the same as the provisions in the Drugs Act. Furthermore the office of Mr. F Kahn (Western Cape Attorney-General) has dealt with this issue and they should obtain the opinions that Mr Kahn’s office received in this regard. The chairperson said that the committee will have to look at the constitutionality of this clause again at a later stage.
The chairperson was of the opinion that this section does not say anything new, except for expressly adding the National Director.
According to the chairperson this section is irrelevant in the light of the powers in terms of section 63. This section allows for mutual co-operation and sharing of information with the Commissioner of South African Revenue Services. This is however pointless when in terms of Section 63 you already have access to the all the Receiver’s information. The chairperson again referred to Section 63 and questioned the constitutionality thereof. According to Mr Hofmeyr the issue for the Receiver is not so much their being in breach of constitutional rights, but rather their concern that criminal and gang leaders will thus be discouraged to disclose all information on their income and that this might lead to a loss in revenue for the Receiver.
Mr Nel (Legal Advisor) said that the Chief Justice recommended that all hearings should be public. Mr Hofmeyr however raised the question about ex parte hearings. The chairperson then asked the legal advisors to check whether ex parte applications should be expressly excluded in this section.
The chairperson recommended that this section be scrapped in the light of the newly drafted Witness Protection Bill. Mr Nel agreed with him, but undertook to check with Mr Labuschagne whether a deletion would be in order and whether they were properly covered in the new Witness Protection Act.
According to the chairperson the Prevention of Organised Crime is a whole new legal area and current court rules and procedures might be inadequate to deal with it. He is of the opinion that new court rules be drafted for this specific area. He would prefer that the Minister and the National Director of Public Prosecutions be involved in such process if possible. However provision has to be made for the interim.
Chapter 7: Criminal Assets Recovery Fund (CARF)
The chairperson liked the concept of the CARF, but did not approve of the bureaucracy that is to be created by the Bill as it currently stands in Draft One. According to him a simple mechanism should be created that skips all the bureaucracy. He suggested that a panel of about three persons exist (one person nominated by Police, one person by Justice and one by the Prosecuting Authorities) and that they make recommendations to the Cabinet on how the funds should be allocated and distributed. Once they have put their recommendations to Cabinet, Cabinet finally decides on the allocation. The Department of Finance can make its input in such cabinet meetings. It should function similarly to the Gambling Act Board. He also stated that the way in which assistance will be rendered to victims should be changed and dealt with in a simpler way. According to the chairperson a certain amount of money should be allocated to Victim Funds that already exist or that are to be set up.
Mr Hofmeyr agreed with the chairperson that bureaucracy should be avoided. He also wanted to know whether the creation of the fund could not be dealt with in regulations rather than through enactment. The chairperson was of the opinion that the main principals should be enacted, but that it be kept very basic. The purpose and objects of the panel/board should be set out in the act, but the way in which they operate and their functions could be dealt with in regulations.
The legal advisor, Mr Nel wanted to know whether the act should still create a Fund or whether only an account will be created that is under the control of the board. According to him, some of the countries do not make use of a fund, but only have an account under the control of the Minister of Finance. The chairperson had no objection to only having an account, but stated that it should not only be under the control of the Minister of Finance. He again stated that the panel should consist of a one person appointed by Police, one by Justice and one by the Prosecuting Authority. He agreed that one or two more people could be appointed by the Minister of Justice in consultation with the Minister of Safety and Security. He said that it was necessary that an accounting officer be appointed and that the Minister of Finance could appoint such a person. He furthermore re-iterated his view that such a committee would only make recommendations on the allocation of funds that are in the Fund or account. The final decision lay with abinet to whom these recommendations were made.
Chapter 8: General Provisions
According to the chairperson some of the ideas relating to the Fund might have to be spelled out in the regulations. He also asked the legal advisors to bring the format of the regulations clause into conformity with a recent regulations clause drafted by Mr Johan de Lange in another act. The chairperson also suggested that 80(e) be split in two in order to provide for any matter under this act and also to provide for a catch-all subclause giving power to the minister to make regulations in regard to any matter he may consider necessary to regulate in order to achieve the objects of this act.
The schedule refers to the offence of trafficking in firearms and ammunition. The chairperson asked the legal advisors to find out whether such an offence does exist in South African law.
Mr Hofmeyr said that it should be considered whether to include the evasion of significant amounts of taxes into this schedule. He also said that the committee should consider including the smuggling of aliens in this schedule. Mr De Lange said that it was impossible to find a perfect schedule and that it would have to be amended to cover new offences.
Domestic Violence Bill
The Chairperson, Mr De Lange (ANC) asked Mr De Lange (legal adviser) to brief the committee on the latest set of proposed amendments. Mr De Lange said that concerns had been expressed regarding the power, in clause 9, of a court to issue an order authorizing police to seize dangerous weapons. The concerns were that ‘dangerous weapon’ is defined in clause 1 to be any weapon as identified in the Dangerous Weapons Act, 1968, and that the definition in that Act is very broad and could include things like a broken cup or cutlery, therefore those things could be seized by the police under the provisions of this Bill. However he said he thought the courts would exercise their prudence when interpreting ‘dangerous weapon’ so that such unintended results would not occur.
The Chairperson said that he would like the Bill to indicate that the power to seize weapons should only arise if there is a perceived threat and asked Mr De Lange to amend clause 7, which deals with the granting of protection orders, so that it refers to clause 9. He then added that while he would like clause 9 to be linked to clause 7, it should also be able to stand alone. Mr De Lange said he would re-draft the clause.
Mr Mzizi (IFP) expressed concern that clause 9 is open to exploitation by people who are motivated by spite to make unfounded allegations of threats in order to cause another person's property (which falls within the court’s interpretation of ‘dangerous weapon’) to be seized. The Chairperson said that the Bill provides that before the court can issue an order (even an interim one) it must be satisfied on the facts before it that there is a prima facie threat to the applicant. He added that after an interim order is granted, the respondent has the opportunity to be heard by the court and may apply to have any seized weapons returned.
The Chairperson referred to a suggested amendment regarding the hearing in respect of granting a final protection order. The new provisions would draw heavily on a provision in New Zealand’s Domestic Violence legislation, and will provide that both the applicant and respondent may have three people each at the hearing for support though the court may permit a greater number than that. The committee agreed that such a provision should be inserted into the Bill.
The Chairperson also observed that an amendment providing that a hearing under the terms of the Bill may be reported but that the names of the persons involved in the hearing must not be made public, would provide a good balance between the interest of publicizing the issue of domestic violence and protecting the privacy of the parties involved in domestic violence proceedings. The committee agreed.
The Chairperson also mooted the idea of a provision which deals with failure of the police to carry out their duties under the Bill, but which does not criminalise such conduct but rather refers such conduct to the police service’s own disciplinary process. He said that if that were done then there would have to be a deadline put in place for guidelines to be drawn up regulating the conduct of the police in matters that the Bill governs. He suggested six months from the date of assent to this Bill. The Committee agreed.
The Maintenance Bill B72 – 98]
This Bill was on the agenda to be discussed but there were various technical difficulties such as uncertainty as to which was the latest version of suggested amendments.
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