Judicial Matters Amendment Bill [B30-98], Prevention of Organised Crime Bill [B118-98]: discussion

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Justice and Correctional Services

01 November 1998
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Meeting Summary

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Meeting report

JUSTICE PORTFOLIO COMMITTEE
2 November 1998
JUDICIAL MATTERS AMENDMENT BILL [B30-98], PREVENTION OF ORGANISED CRIME BILL [B118-98]: DISCUSSION

Documents handed out
Judicial Matters Amendment Bill (First draft) [J2D]
Prevention of Organised Crime Bill (Fourth draft) [ORG 51]
Prevention of Organised Crime Bill (Fourth draft) [ORG 51]
Prevention of Organised Crime Bill (Fourth draft) [ORG 51]

SUMMARY
The committee read through the Judicial Matters Second Amendment Bill, deferring consideration, and discussed aspects of the Prevention of Organised Crime Bill.

MINUTES
The Chairperson, Mr De Lange (ANC) asked the committee to read through the Judicial Matters Second Amendment Bill for the purposes of considering it and reporting their thoughts to the committee at a later time, when the Bill would be discussed. He referred the committee specifically to clauses 7 and 19 for their consideration.

Clause 7 is intended to effect an amendment to the Criminal Procedure Act, 1977, and authorises police to use force to effect arrest. This clause may be interpreted to allow police to shoot a person fleeing arrest. Mr De Lange said that he had briefly discussed this clause with the Minister and he had concerns that it would be in breach of the Constitution for a police officer to kill a person fleeing arrest considering that the Constitutional Court has held that the death penalty (which at least was given to people found guilty of a crime) is unconstitutional.

Clause 19 is aimed at correcting the problem which may arise when the Committee passes a Bill after considering only the English text (as is its practice) and the Afrikaans text receives the President’s assent, and there is a difference in meaning between the two texts. Constitutionally, the version that receives the President's assent is the official version. However the translation into Afrikaans may not be sufficiently accurate. The committee must consider how best to deal with this problem, and the solution will be drafted as clause 19.

Prevention of Organised Crime Bill
The committee discussed, and agreed on, some minor technical amendments.

Mr De Lange raised a potential problem with fact that the Bill provides for the forfeiture of any ‘instrumentality in an offence’ which is any property which is concerned in the commission or suspected commission of an offence in the Republic and any act or omission outside the Republic which, had it occurred in the Republic, would have constituted an offence. Mr De Lange said that common sense would dictate that property may only be subject to a forfeiture order if a crime has been committed but that the definition of ‘instrumentality of an offence’ covers situations where no crime has been committed. The committee discussed this issue without reaching agreement on an alternative definition or forfeiture provisions. The legal advisers, Mr Nel and Mr Schmidt, agreed to redraft the provisions for the committee to consider.

Mr De Lange also said that as chapters 5 and 6 both deal with civil proceedings, the term applied to a defendant in such proceedings should be consistent. He suggested that all occurrences of ‘defendant’ in chapter 5 should be changed to ‘respondent’ to conform to chapter 6. Mr Hofmeyr (ANC) responded that the two words have specific meanings and defendant is defined in the Bill, therefore replacing ‘defendant’ with ‘respondent’ may lead to confusion when interpreting the Bill. Mr Schmidt added that applications under chapter 6 are not actually made against a person, but against property, and chapter 6 differs from chapter 5 in this way. Mr De Lange agreed to leave the provisions as they are.

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