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SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
22 March 2006
AMENDMENT OF NATIONAL PROSECUTING AUTHORITY PROSECUTING POLICIES: BRIEFING; MAGISTRATES COMMISSION REPORT ON SUSPENSION OF MAGISTRATES: BRIEFING
Documents handed out:
Amendment of Prosecuting Policy to Provide for Directives Relating to Prosecution of Criminal Matters Arising from Conflicts of the Past and which were committed before 11 May 1994: Section 179(5)(a) and (b) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), read with Sections 21 and 35 of the Prosecuting Authority Act, 1998 (Act 32 of 1998): Part1 & Part2
Prosecution Policy I' and Directives Relating to Prosecution of Criminal Matters Arising from Conflicts of the Past
The Magistrates’ Commission reported progress on the suspension of three magistrates who had to be reinstated because proper procedures had not been followed in the first suspension process. They also briefed the Committee on four completed investigations. Members were concerned about the fact that cases were prolonged while suspended magistrates were still getting paid.
The NPA presented the amendments that had been made to the prosecuting policy to provide for directives that related to criminal matters arising from conflicts of the past (prior to May 1994). Members raised questions related to the admissibility of evidence heard during the Truth and Reconciliation Commission amnesty hearings, the plea-bargaining procedure and whether the needs of the victims would be addressed.
Suspension of three magistrates
The Chairperson reminded the Committee that some time ago they had been briefed about three magistrates who had been charged and whose suspensions had been recommended. Unfortunately some processes had not been properly followed and the Committee could not approve the recommendation by the Department of Justice. Since the issues around the suspension of the magistrates had been thoroughly debated by the Committee already, the Chairperson requested the Magistrate’s Commission to brief the Committee on whether all the necessary processes had been followed since.
Mr Hans Meijer (Magistrates’ Commission) reported that after the Committee could not accept the recommendation to suspend the three magistrates, the suspensions were lifted, reports were withdrawn and the three were reinstated on 1 August 2005. The Commission was of the view that the reasons for the suspension still existed and requested them to submit representations why they should not be suspended. The Committee then met on 25 August 2005 to consider the three matters and recommended that they again be provisionally suspended from office in terms of Section 13(3)(a) of the Magistrates Act (1993). Minister of Justice, Ms B Mabandla then tabled the reports before Parliament. The Magistrates’ Commission expected to conclude their inquiries within the coming weeks.
Mr Meijer provided the following updates on other cases:
-The matter of Mr K Sulliman has been partially heard and would hopefully be concluded by 11 May.
-Mr Moraki who had been suspended pending the outcome of a criminal case against him has since been reinstated. He was acquitted due to lack of evidence and his suspension was lifted. The Commission was of the opinion that due to the lack of evidence there would not be much chance of success in an inquiry.
-Mr Khumalo’s case was withdrawn because a key witness had passed away. On the balance of probabilities, an inquiry would not have been successful as far as proving the misconduct allegations was concerned. The Minister’s decision on lifting his provisional suspension was still pending. She was also asked to withdraw her report.
-Mr Mate’s criminal trial had been postponed until May. The Scorpions would prosecute his case and they had requested the Commission not to proceed with their inquiry for fear that it might jeopardise their case. The Commission hoped to finalise the case in May.
National Prosecuting Authority (NPA) Briefing on Prosecution Policy and Directives relating to the Prosecution of Criminal Matters arising from Conflicts of the Past
Adv G Nel (NPA Legal Advisor) briefed the Committee on the prosecuting policy and policy directives relating to the prosecution of criminal matters arising from conflicts of the past which were developed by the NPA in 2005.These directives were informed by the President’s statement to Parliament at the tabling of the report of the Truth and Reconciliation Commission (TRC) in April 2005.
Mr M Mzizi (IFP, Gauteng) noted that the inquiry into one of the three magistrates’ fitness to hold office was postponed in his absence. Why could he not attend the inquiry? What prompted the Commission to postpone the inquiry? He feared that the magistrate in question would continuously be unavailable, which would lead to the case dragging on indefinitely. Was his suspension already effective?
Mr Meijer said that on 13 January the Commission had to give a date for when the inquiry would commence, but both the magistrate and his attorney was unavailable. The Commission agreed to postpone the inquiry pending the magistrate’s application for leave to appeal. He filed such an application in August 2005, but failed to follow up on it so it was never put on the roll. His application for leave to appeal was refused on 16 February 2006. The inquiry would be concluded on 6 April 2006.
Mr Mzizi asked whether there was any guarantee that the magistrate and his defense would be available on this date. He suspected that they were using delaying tactics. He reminded Members that the magistrate was still receiving his salary.
Mr Meijer responded that the Chief Magistrate of Johannesburg would serve the notice stating the date of the inquiry. The suspended magistrate would be requested to indicate whether he would be attending. If not, he has been given ample time to decide whether the inquiry should continue in his absence. The Commission would move to proceed in his absence.
Mr Mzizi asked whether the Commission was looking into recommending that he be suspended without remuneration. Mr Meijer replied that the full Commission would be sitting on 30 and 31 March, and this matter would be on the Agenda.
Mr N Mack (ANC, Western Cape) said that the situation could easily be perceived as a case of certain people being treated with kid gloves. He agreed that it appeared as though delaying tactics were being used. Public perception was that the course of justice was too slow. He asked why certain people could not be brought to justice? He wondered if their knowledge of the law made it possible for them to manipulate it. He asked whether there were any other measures in place that could expedite these cases. He emphasised that his constituency would find it difficult to accept this situation.
The Chairperson said that the Courts had done their part; now it was up to the Commission to finalise the matter. He hoped that the process would be expedited.
Mr Andre Louw (Magistrates’ Commission) said that the matters, which were all at a very advanced stage, would hopefully be concluded within the coming weeks. He agreed that, unfortunately, some of the magistrates were using their knowledge of the system to manipulate it.
Mr Meijer added that the Commission wanted to streamline the process. The Commission was doing everything it could to expedite matters. The accused however did have the right to legal representation. Some of them appointed council that was not always available. Witnesses had to be flown to court hearings as well. Often everyone except the defense was ready. There was not much the Commission could do.
The Chairperson commented that it was time that people behaved in a manner befitting the office they held. To make the situation worse, some of the magistrates had stolen from the poor. The Committee could not accept the situation.
Mr Mzizi added that during the Committee’s oversight visits it always wanted to know why some cases were postponed for such long periods. This added to the backlog. He asked whether the presiding officer did not have the prerogative to decide that a case could no longer be postponed?
Mr Johan Labuschagne (Ministry of Justice and Constitutional Development) said that the Magistrates Act was designed to expedite proceedings. A report needed to be tabled within seven days of the Commissioner recommending a suspension. Within 60 days of the suspension the inquiry into the fitness of the magisterial office had to commence. If this process were not followed the suspension would lapse. He agreed that, like all other proceedings, these were also abused at times. The Commissioner has made a point to oppose applications for postponement in order to expedite the process. Objections could still be placed before the tribunal. The Department was doing all it could to try and avoid these delays.
Mr Louw said that the Commission strongly opposed unnecessary remands. When there was no good reason for a person to be absent, the inquiry continued in their absence.
The Chairperson commented that when the Commission had reported on some of the cases that had ended in acquittals it said that the Department had strong cases against these magistrates. He asked how they had ended in acquittals?
Mr Meijer responded that the Commission acted on statements. When they had read the statements that they had thought that the cases were strong. Upon cross-examination, the witnesses fell apart. The inquiry was based on the reason for recommending the suspension, which was also based on the statements.
Mr Mzizi said that once a person had been accused and investigated in connection with a certain crime her or his image would be tarnished. He wondered how such a person could go back into office?
Mr Mzizi asked whether Mr Sulliman had "exposed" himself in court. Mr Louw explained that five charges were laid against him. More women came forward at a later stage. Mr Sulliman had behaved and spoken in an inappropriately sexually explicit manner to the complainants.
Mr Mzizi agreed that one did not want to start a new amnesty process. One did not want the process to take on the shape of the Nüremberg trials. He asked whether only those who had had their applications for amnesty refused, and those who had been implicated but never defended the allegations, would be tried.
Adv Nel explained that the NPA would consider four different types of cases: those amnesty applications that had been refused; cases where there was knowledge of a crime that had been committed, but amnesty had not been applied for; cases where the person who had applied for amnesty had identified other perpetrators as well as those cases based on totally new information.
Mr Mzizi pointed out that any evidence that had been heard during the TRC hearings would not be admissible. He reminded the Committee that the TRC Act stated that investigations of human rights offences should not be limited to South Africa. Prior to 1994 there was blanket amnesty for offenses committed outside of South Africa. He wondered how the NPA would handle such situations.
Adv Nel stated that the NPA could not rely on the information revealed during the TRC process. The TRC Act permitted the use of derivative evidence. If, through looking through the evidence, one discovered other perpetrators, they could be prosecuted. Inadmissibility referred only to those people who had received amnesty. While evidence uncovered during the amnesty process could not be relied upon to prosecute perpetrators who had not been granted amnesty, it could be used for further investigations. The commissioners who had presided over the amnesty process would not be called to give evidence.
Mr Mzizi pointed out the courts dealt with heavy backlogs. He asked whether special courts would have to be created for these proceedings.
Adv Nel said that it was difficult to give a definite answer to this question. Even before the process had commenced, he had been of the opinion that the judicial system would not be flooded with cases. To date, not many cases had been received despite the process having been widely covered in the media. He pointed out that if there were a need however, special courts would be established since these cases were high priority and should not be prolonged. One needed to consider the interests of the victims as well as the perpetrators who had these cases ‘hanging over their heads’.
Mr A Manyosi (ANC, Eastern Cape) commented that the intention was always to make sure that the public had confidence in South Africa’s legal system. He asked what steps the NPA would take to ensure that a victim was convinced that, when a nolle proscute certificate was issued, the case was weak and could not be successfully tried in a court of law.
Adv Nel responded that in terms of the prosecuting policy guidelines, the NPA was dealing with the matter quite differently. In terms of the Criminal Procedure Act (1977) and in terms of the current guidelines, the NPA was not obliged to qualify its decision to decline to prosecute to the victim. The new guidelines however placed an obligation on the National Director of Public Prosecutions (NDPP) to qualify why he or she would not prosecute a particular case. In line with what the President had requested, the NPA would take into the account the interests of the victim. In cases where there was not a strong enough case, the NPA approached the victims to establish whether they could assist the investigation in any way. If, after a case had been closed due to lack of evidence, new evidence came to light, the NPA could open it again. In terms of the Criminal Procedure Act, the NPA had to follow a particular process when issuing a nolle prosecute certificate.
Mr Manyosi asked to what extent the mutually acceptable guilty plea impacted on the accused? He wondered how much the public knew about the steps that had been taken against the accused. He commented that justice must not only be done but must also be seen to be done. Plea-bargaining was normally arranged behind closed doors. He asked whether the public appreciated this method?
Mr Mack feared that people might use plea-bargaining to get away with the crimes they had committed. He wondered what criteria were used to decide who to plea-bargain with in cases where there were more than one accused. He asked whether presenting ‘mitigating circumstances’ was not a form of plea-bargaining.
Adv Nel said that it was unfortunate that some cases created this perception. In terms of the normal process, plea-bargaining agreements could be entered into with the prosecutor on the one hand and the accused on the other. In terms of the new prosecuting guidelines, the NDPP had to be involved in any plea-bargaining process resulting from criminal offences arising from the past.
The Chairperson asked whether referring all cases to the NDPP would not delay the process and thus render the service ineffective.
Adv Nel responded that it was because of the controversial and sensitive nature of these cases that the NDPP needed to be involved in plea-bargaining cases. Everything needed to be done to ensure that the process was transparent. In terms of Section 105 of the Criminal Procedure Act the prosecutor had a duty to, when he entered into a plea-bargain, consult the victim as well as the investigating officer. The plea-bargaining process needed to be recorded in open court. Involving the NDPP and placing an obligation on him or her to qualify the decision would address the needs of the victims.
Mr Manyosi asked what strategies had been put in place to ensure that cases were not dismissed on the basis of technicalities.
Mr Manyosi said that some people felt that there were cases relating to the 1960 Sharpeville attacks, which were being ignored. He asked how the NPA could assist to ensure that these cases would be investigated.
Mr A Moseki (ANC, North West) wondered what the NPA would do to ensure that incidents that happened in the former Bantustans would be uncovered.
Adv Nel said that the NPA was willing to prosecute any case. If someone was aware of an incident they needed to inform the NPA. He warned that the NPA could not act on rumours: it had to receive an affidavit before it could start investigating.
Mr Moseki wondered when the process would commence. Adv Nel responded that this question was difficult to answer – if it depended on the NPA only, the process would start very soon. The President required that the NPA should also make use of other security agencies, other departments, and other law enforcement agencies. The NPA has already referred some of these cases to the South African Police Service (SAPS) to assist in the investigations. It appeared as though there was a ‘bit of a hiccup’ in this process but the NPA was in constant negotiations with the SAPS to conclude the investigations. The NPA was not dragging its feet but was not the only body involved in the process.
Mr Z Ntuli (ANC, Kwazulu Natal) wondered what process would be followed if new evidence came to light after a person had been granted amnesty.
Adv Nel reminded Members that in terms of the amnesty process a person could not be prosecuted for a crime for which they had already received amnesty. If however there were related matters, the prosecuting authority could launch an investigation. When a person received amnesty, he or she had already admitted that he or she had committed an offense. They could not be charged for that offense if additional evidence came to light, because they would already have admitted their guilt.
Adv Nel concluded by saying that the NPA was taking into account the interests of the community at large, Parliament, the accused and of course the victim. If at times this was not clear, he assured the Committee that the NDPP was doing his best to achieve this end.
The Chairperson requested Adv Nel to respond to the following questions at his next meeting with the Committee:
-There were many cases of prosecutors in the NPA being investigated for misconduct. What mechanisms had been put in place to ensure that prosecutors would not exploit the discretion given them by the prosecuting policy?
-How certain could one be that all the prosecutors in the NPA were acting impartially and in good faith. How could one ensure that they acted in the interest of the community and not according to the wishes of the community?
The meeting was adjourned.
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