Witness Protection and Services Bill [B9-98]: briefing

NCOP Security and Justice

01 September 1998
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980901scjustice

SECURITY AND JUSTICE SELECT COMMITTEE
1 September 1998
WITNESS PROTECTION AND SERVICES BILL [B9-98]: BRIEFING

Documents handed out:

Draft 5 of Witness Protection and Services Bill

MINUTES
The Chairperson, Mr M Moosa, announced that the White Paper had been approved by the Portfolio Committee of Safety and Security except for the organogram presenting the structure of the department. A National Conference was being planned to launch the White Paper, and this would include a number of stakeholders. Cabinet would finalise views on the White Paper by the 9 September.

Witness Protection and Services Bill [B9-98]
The law advisor, Mr Labuschagne, briefed the committee on the Witness Protection and Services Bill B9-98. Copies of Draft 5 of the bill were distributed to all present. (Document numbered WIT 18).

Mr. Labuschagne stated that:
-words in bold type in square brackets indicated omissions from the original bill
-words underlined with a solid line indicated insertions in the original bill
-words in italics and bold type in square brackets indicated further omissions from the bill
-words in italics and bold type and underlined with a solid line indicate further insertions to the bill.

Mr Labuschagne proceeded to brief the committee on each and every clause.
Clause One deals mainly with definitions. Mr Moosa asked whether the financial implications of the bill had been taken into account. Mr Labuschagne said that the Portfolio Committee was aware that there were needs and there would be financial implications.

Clause Two deals with the Establishment of Office for Witness Protection and Branch Offices. Subclause 2.2 was a new clause and emphasised the establishment of branch offices in an area that the Minister determines.

Clause Three deals with the Appointment of the Director and Members of Office.
Mr Labuschagne emphasised that everything underlined had been newly inserted.
Clause Four deals with the Powers, Functions and Duties of the Director.

Clause Five deals with the Appointment of Witness Protection Officers. It was stressed that the Director could delegate powers to any member of his office. This also meant any or all departments of the state. The appointment of witness protection officers formed part of a clear structure. This being from the director to the branch officers to the witness protection officers to the security officers.

It was queried that witnesses needing protection was a dynamic procedure What would happen to staff once offices are closed and needed no more? Would they be accommodated elsewhere. Mr Labuschagne answered that a witness protection officer was a public official and could go into public service. A question on short-term employment was posed by the KZN delegation. This went onto a discussion on contracts.
Mr Moosa stated that he would certainly support the notion of contracts as it was clear that it was needed, for example, in areas such as Richmond.

A question was posed regarding witness protection officers who were potentially ‘loose canons’ holding vital information. Mr Labuschagne stressed that any individual that did reveal this highly confidential information would be severely dealt with.

Clause Six deals with the Secondment of Security Officers. He stressed that the role of the witness protection officer was merely to co-ordinate. Security officers were taken from the National Intelligence Agency, the Secret Service and the SANDF. The powers, duties and functions were imposed by the Minister.

A question was also raised whether anyone else could become a security officer.
Mr Labuschagne stated that no one else could besides those designated but others may be seconded as in the case of minors (such as school teachers). Protection however is the sole responsibility of the security officer.

Clause Seven Application for Protection.
A question was asked as to the nature of post-trial protection, in other words, after evidence was given by the witness. Mr Labuschagne said that this was possible if life was threatened and the extent of the threat. It is therefore possible for the individual to be protected for the rest of his/her life. Mr Moosa stated that the financial implications of this would be severe. The committee agreed on this. The KwaZulu-Natal delegation proposed that they should consult with the Minister of Finance.

The point was raised that some witnesses in gang-related matters are refusing to give evidence because of what might happen to them afterwards. Mr Moosa stated that they should view the situation holistically.

Mr Labuschagne addressed the issue of relocation and stated that in terms of identity change and the need for relocation, he had looked to the legislation of the USA, Canada and Australia. However it would be dealt with in terms of regulations.

Continuing with Clause Seven he stressed that if for any reason the witness could not make the report i.e. was in hospital, the investigating officer might make it on his/her behalf.

The issue of protection of minors was looked at. As to date the Portfolio Committee had not decided on the finalities of this clause. Mr Moosa brought up the issue of the seven day period for which minors were in the protection of the Director. He stated that this was far too long and should be left up to the court to decide. Mr Labuschagne said that it would be left up to the Portfolio Committee to decide or determine who else should play a role. The committee generally felt that seven days was far too long to keep a minor under the decision of the Director and that they should go to a judge right away. There are temporary or interim measures that could be adopted. Mr Moosa stated that the High Court was the ultimate guardian of minors. Mr Surty added that if there were certain compelling reasons for prolonging this period, could the holding time not then be 72 hours? The objective was the interests of the child and one must work on the premise of protecting the child.

Mr Labuschagne addressed the Committee on:
Clause Eleven - Placement Under Protection
Clause Twelve - Consideration of Application for Protection
Clause Thirteen - Protection Agreement
A question was asked as to the powers of the Director to decide on whether or not protection was to be given or not. Mr Labuschagne stated that subclause 2 verified this.

Mr Moosa returned to the issue of minors which he felt needed to be reviewed as one should be able to go straight to the court and not the Director.

Mr Labuschagne stated that according to clause thirteen , the director must enter a protection agreement. Subclause two deals with agreements with minors which must have their parents’ consent. Subclause three states that the director may want another agreement when the minor becomes a major.

A question was raised as to the potential danger of placing witnesses from different cases together. Did the contract ensure a witness protection from another case. Also raised were the taxation implications of the individual being protected. Mr Labuschagne reiterated this was according to Australian legislation and elaborated. Mr Moosa said there must be a ‘don’t dodge obligations’ clause.

Clause 14 Discharge from Protection
Mention was made that if a witness is moved from another country and the director consents to this then he also has the power to discharge that witness. According to subclause two; a person may be discharged if the Attorney General indicates proceedings are concluded.

The KwaZulu Natal delegation raised a question as to prescription and service. Mr Labuschagne stated that he had looked at the Prescription Act and it was covered. Mr Surty then enquired as to the issuing of summons and not prescription and whether it made special provisions for certain circumstances.

Another question was raised as to whether there were checks to determine if the witness was satisfied. In other words a monitoring mechanism. This would work both ways i.e. to see if the witness was being abused or he/her was abusing the system. Mr Moosa asked to what extent did they determine if the witness still needed protection. Mr Labuschagne stated that it was the duty of the witness protection officer to get a report from the investigating officer on the status of the case. This would be raised in the Regulation Clause. Mr. Moosa and Mr Surty both agreed that a note should be made on monitoring this situation.

Clause Eighteen Preservation of Secrecy
Mr Moosa asked whether this applied to each and every single member in every office.
The legal advisor said that it did. A question was raised as to the sanction for persons who disclose any information. Mr Labuschagne stated that the result was a fine or imprisonment and these were in the Bill. The committee felt that the penalty should be heavier especially in terms of the ongoing violence.

Clauses 20 - Publication of Information concerning Protected Person
Clause 21 - Protected Persons not obliged to disclose certain information
Clause 22 - Donations, Bequests and Contributions for witness protection
Mr Moosa felt that under clause 20 electronic information such as Email should be included in the list and one should look to the Publications Act. He also stated regarding punishments that the fine should be taken out and an imprisonment not exceeding twenty years should be added. The committee mentioned that this had helped with the Mafia problem in the USA.

Mr Cele asked as to the potential abuse of the system. Backing this Mr Moosa asked how they dealt with this in other countries. Mr Labuschagne stated that no Witness Protection Bill was as thorough as South Africa’s. The USA had only four clauses in this area.

The meeting had to end at this point and no other bills on the agenda were discussed. It was decided that the committee would meet earlier the following day as they now had extra bills to cover.

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